Judgment B. Siva Sankara Rao, J. 1. The unsuccessful plaintiffs 1 to 7, who are no other than the widow, four sons and two daughters of late Cheedella Nagabushanam, in the suit O.S. No. 60 of 1984, on the file of the Subordinate Judge, Khammam against Cheedella Lakshmi Narasimha Rao-sole defendant, which was since ended in dismissal on 31.12.1991, by impugning the same preferred the appeal. 1(a). The suit filed on 01.05.1984 before Vacation Court was transferred to regular Court, i.e., Senior Civil Judge's Court, Khammam. The reliefs sought in the plaint were for partition and separate possession declaring that the plaintiffs are entitled for 1/8th share each in the plaint schedule properties by meets and bounds and to put them in possession of the respective shares, for past profits of three years and also future profits that to be determined, for costs and for any other or alternative reliefs that are entitled in the facts and circumstances. 1(b). The plaint schedule consists of 7 items (which include the item-7 added as per orders in I.A. No. 352/1988), viz., item No. 1-vacant site of 1200 square yards, plot Nos. 10&11-situated at Burhanpuram area of Khammam town; item No. 2 -agricultural wet land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village, Krishna District; item No. 3-residential house bearing municipal No. 3-9-80 of Jahirapur area, Guttalbazar, Khammam town; item No. 4-residential house situated at Yerrupalem of Madhira Taluk; item No. 5-agricultural land of Sy. No. 266-Ac.0.07 gts, Sy. No. 262-Ac.0.33 gts, Sy. No. 194-Ac.1.34 gts & Sy. No. 263-Ac.1.06 gts of Yerrupalem village, Madhira Taluk; item No. 6-two shops viz., shop No. 50, fertilizer shop situated at Madhira & shop No. 61, fertilizer shop situated at Yerrupalem village of Madhira Taluk and item No. 7-agricultural land of Sy. No. 342/2/A-Ac.2.00 cts of Velagaleru village, Mylavaram Taluk, Krishna District. 2. Factual matrix of the matter before trial Court in nutshell is that: "2(a). The averments in the plaint in brief are that, Lakshmi Narasimha Rao-(1st defendant) & late Nagabushanam-(father of plaintiffs 2 to 7 & husband of 1st plaintiff) are the two sons besides four daughters by name-Seetharamamma(died), Lalithamba (died), Kanakamma & Saradamba, of late Cheedella Radha Krishnaiah (genealogy-pedigree is shown in para-2 of the plaint). The averments in the plaint in brief are that, Lakshmi Narasimha Rao-(1st defendant) & late Nagabushanam-(father of plaintiffs 2 to 7 & husband of 1st plaintiff) are the two sons besides four daughters by name-Seetharamamma(died), Lalithamba (died), Kanakamma & Saradamba, of late Cheedella Radha Krishnaiah (genealogy-pedigree is shown in para-2 of the plaint). That, during life time of said Radha Krishnaiah, he performed the marriages of his 4 daughters (supra) and given properties to them and thereby they have no right to claim partition. That said Radha Krishnaiah and his two sons above named constituted Mitakshara joint family. Nagabushanam worked as a teacher and retired from service before he died, whereas Lakshmi Narasimha Rao had no service either private or Government and he was maintaining the joint family properties for the last 15 years and never shown any accounts to his elder brother-Nagabushanam, but for at one point of time, that too, prepared and shown false accounts as observed by Nagabushanam. That, on 02.12.1983 Nagabushanam had executed a Will (Ex. A.9) bequeathing his share in the joint family properties and self acquired properties to his wife and children and died testate on 09-01-1984. That, late Nagabushanam also mentioned in the Will that 1200 sq.yds site at Burhanpuram, Khammam town) was jointly purchased by him & Lakshmi Narasimha Rao for Rs. 1,000/- and paid his share-Rs. 500/- to Lakshmi Narasimha Rao; as was being a Government Servant permitted Lakshmi Narasimha Rao to obtain registered sale deed in his name. That, late Nagabushanam was in the habit of maintaining accounts in a separate book (Ex. A.1) and the entry therein dated 11.04.1950(Ex. A.2) also reveals the payment of Rs. 500/- to the defendant for the item No. 1-1200 square yards at Khammam purchased and thus the defendant-Lakshmi Narasimha Rao had no right to claim said item as his own, that in the last 15 years, the defendant was while maintaining false accounts, however with the profits of joint family lands started two fertilizer shops one at Madhira and other at Yerrupalem (item 6 of the schedule property) and profits from the two shops are more than one lakh per year and plaintiffs are entitled to claim partition of said business also. That, two months prior to the filing of the suit, plaintiffs demanded the defendant for partition of the joint family properties and rendition of accounts, but the defendant besides refused to show any accounts of fertilizer business and agricultural lands, did not cooperate for partition and gave a publication in Andhra Patrika daily newspaper on 22.04.1984 stating his intention to sell away the 1200 sq.yds site, taking advantage of the sale deed stands in his name in claiming as if owner without such right to sell alone. That, as such the plaintiffs are entitled at each 1/8th share in the plaint schedule properties by partition with separate possession and for profits-future as well as the last 3 years past profits thereon and hence the suit. 2(b). The averments in brief of the written statement filed by the defendant-Lakshmi Narasimha Rao, dated 08.08.1984 filed in Court on 16.08.1984, are while admitting their relationship including he is younger to Nagabushanam all the three were joint at the time of their father-Radha Krishnaiah, who died 40 years back, but by disputing the suit claim-as a deliberate lie set up with an ulterior motive with false allegations as if of the plaintiffs and defendant were members of joint family by the time of death of Nagabushanam. His contentions are that, after the obsequies on the 12th day of death of their father-Radha Krishnaiah in the year, 1944 and in the presence of all their kith and kin, from his father-in-law raised the question of the properties, its management and for immediate partition apprehending injustice to him being the youngest of all, the partition of movable and immovable joint family properties including the ancient tiled house at Yerrupalem between the defendant and Nagabushanam were affected and thereby from that of the year, 1944, Nagabushanam and the defendant were separate and living independently with severance of status, that Nagabushanam was in Government service and the defendant had various avocations like press reporting, fertilizers business, P.W.D. contracts, insurance agency and agriculture etc.; that in the partition, the two brothers get properties at Rayanpadu, Velagaleru, Ibrahimpatnam, Kethampudi, Trilochnapuram, Elaprolu and Kondapalli villages and but for that, properties in all other villages were sold; 2(b)(i). that relevant part of the land at Velagaleru (item No. 7) was acquired by Government through land acquisition proceedings from respective shares of both of them and compensation paid individually, 2(b)(ii). that relevant part of the land at Velagaleru (item No. 7) was acquired by Government through land acquisition proceedings from respective shares of both of them and compensation paid individually, 2(b)(ii). that the lands at Rayanpadu (item No. 2) being enjoyed separately viz., eastern half that fell to the share of the defendant and western half that fell to the share of Nagabushanam respectively, that till the year, 1975 respective shares of them were being cultivated by different tenants and in the year, 1975 Potluri Nageswara Rao falsely claiming permanent tenancy over entire Rayanpadu property and the defendant and his elder brother, Nagabushanam had to avoid severe battle to vindicate their rights in the two suits filed by Potluri Nageswara Rao in O.S. Nos. 1213 of 1975 & 1564 of 1975 at Vijayawada Munsif Court and various interim applications were filed and orders passed and the matters went in appeals or revision, involved both the brothers to get financial loss, still appeal is pending in Senior Civil Judge's Court, Vijayawada. In that litigation against Potluri Nageswara Rao, the defendant and his brother-Nagabushanam had to act jointly in co-operation with each other to retain their valuable property that was ultimately handed over to them respectively in the year, 1978 that, since Nagabushanam expressed his old age and financial inability and requested the defendant to provide necessary funds for the litigation and also to maintain exclusive possession and cultivation, to avoid further tenancy litigation, the defendant advanced funds for entire litigation in the village as well as in the Court and also for maintaining the agriculture with tacit understanding between them that his brother would repay him half of expenses incurred by him with interest at 12% p.a., & 2(b)(iii). it was also agreed that Nagabushanam should not collect his rents from the tenants at Velagaleru, till the end of Rayanpadu litigation and the defendant should alone collect the rents and meet the litigation expenses of Rayanpadu; that apart, from the funds advanced by defendant in the litigation of Rayanpadu property, Nagabushanam used to take amounts for maintenance of agricultural lands and for fertilizers and the defendant had maintained regular accounts of the amounts advanced to Nagabushanam, they were periodically acknowledged by Nagabushanam up to end of April, 1983 that comes to Rs. 73,226/- and he has to pay half of the amount with interest thereon and similarly the amount due by Nagabushanam pertaining to the lands given to him, for expenses came to Rs. 7,650/- till 30.06.1983 and the contrary contentions of plaintiffs that defendant managed the family properties as a joint owner are not true. 2(b)(iv). It is also contended that in item 2 of the plaint schedule, half of the land towards the western side fell to the share of Nagabushanam is the land of plaintiffs and this defendant has no concern with it and he had also given up the management of the share of Nagabushanam in the year, 1983 and it is claimed that one Sadu Gopal (in fact son in law of the defendant) has taken the lands from Nagabushanam and he filed A.T.C.8/1984 in the District Munsif Court, Vijayawada. 2(b)(v). It is also contended that there is no truth in the allegation that item No. 1 of plaint schedule property was jointly purchased by both of them as neither Nagabushanam had any manner of right nor plaintiffs can claim any such thing as his heirs in said item No. 1 of plaint schedule, which the defendant purchased in the year, 1950 for a valid consideration under registered sale deed which is his exclusive property. 2(b)(vi). He also contends that there is no truth in the allegation that Nagabushanam executed Will dated 12.12.1983 (Ex. A.9) and even any Will executed by Nagabushanam; the averments in the Will deed are not binding on the defendant and he denies the fact of execution and genuineness of so called Will and alternatively correctness of the contents therein. 2(b)(vii). It is also contended that he does not claim any right in item No. 5 of the plaint schedule property since it exclusively belongs to Nagabushanam, who purchased it after partition of their family properties. 2(b)(viii). It is also contended that there is no truth in the claim of plaintiffs to have any share in the fertilizers business at Madhira and Yerrupalem-(shops covered by item No. 6 of the plaint schedule), that the defendant is doing business with others and under registered partnership since, 1960 and plaintiffs have no manner of right to claim any share in it. 2(b)(ix). 2(b)(ix). He contends further that item No. 3 of the plaint schedule property was purchased by him on hire purchase contract from municipality of Khammam, which was allotted to him long after his separation from his brother-Nagabushanam and Nagabushanam had also similarly applied to the Municipality, but only the defendant got allotment and any claim of the plaintiffs in the item 3 of plaint schedule is thereby untenable. 2(b)(x). The defendant further contends that, the plaintiffs have no cause of action to file the suit and the suit claim is liable to be dismissed. 2(b)(xi). The additional written statement filed by the defendant, pursuant to the adding of the item No. 7 of plaint schedule property, was with the contentions that, the property situated in Velagaleru of Ac.2.00 gts in Sy. No. 342/2/A1 was acquired by Government long back & compensation was also paid equally for respective shares to the defendant & Nagabushanam and the land was divided into two parts and the half share of Nagabushanam was given sub-number 342/2/A1 measuring Ac.1.11 gts and the land of defendant was given sub-number 342/2/B1 measuring Ac.1.04 gts (total Ac.2.15 gts) and they respectively received the compensation that was paid and curiously the plaintiffs by amendment application got said land included in the schedule of properties with false allegations and there is no land in Velagaleru either to the credit of Nagabushanam or to the credit of the defendant." 3. From the above pleadings, the trial Court framed five issues and another additional issue, which are the following: "1) Whether late Nagabushanam and the defendant constituted Hindu Mitakshara Joint Family, on the date of his death? 2) Whether the suit schedule properties are joint family properties between late Nagabushanam and defendant? 3) Whether the plaintiffs are entitled for partition of the suit schedule properties against the defendant? 4) Whether the defendant has managed the suit schedule properties rep. joint family and whether he is accountable to the plaintiffs? 5) To what relief? 6) Additional issue dt.8.03.1990: Whether item No. 7 of the suit schedule property is not available for partition as pleaded by the defendant in the additional written statement?" 4. Based on the pleadings and on the issues, in the course of trial: "4(a). joint family and whether he is accountable to the plaintiffs? 5) To what relief? 6) Additional issue dt.8.03.1990: Whether item No. 7 of the suit schedule property is not available for partition as pleaded by the defendant in the additional written statement?" 4. Based on the pleadings and on the issues, in the course of trial: "4(a). On behalf of the Plaintiffs, 1st plaintiff was examined as P.W.1 and cause examined four more witnesses by name Mogalirajapuri Chander Rao, T. Venkateswarlu, Ketamneni Suryanarayana and S. Koteswara Rao & placed reliance upon Exs. A.1-11, viz., Ex. A1-Account Book for the year, 1950 maintained by Nagabushanam; Ex. A2-Relevant entry dt.11.04.1950 made by Nagabushanam in the Ex. A1; Ex. A3-Certified copy of judgment & decree in ATC 8/1984 on the file of II Addl.M.M., Vijayawada; Ex. A4-CC of judgment in CMA 151/1988 on the file of Prl. Dist. Judge, Machilipatnam; Ex. A5-Xerox copy of the order passed in CRP 4054/1989, dt.18.04.1990 on the file of High Court; Ex. A6-Letter/(postcard)-dt.4.12.1975; Exs. A7&8- Postcards-dt.17.07.1975 & 25.12.1959; Ex. A9-Will-dt.02.12.1983; Ex. A10- Letter of Nagabushanam to Tahsildar, Vijayawada-dt.15.11.1974 & Ex. A11- Postcard-dt.13.11.1952 written by defendant to Nagabushanam. 4(b). On behalf of the defendant, himself was examined as D.W.1 and cause examined-Hari Subrahmanyam and K. Venkateswarlu as D.Ws. 2 & 3 by placed reliance upon Exs. B.1-14, viz., Exs. B1-5 postcards, dt.26.06.1978, 11.04.1979, 16.06.1979, 30.05.1982 & 18.08.1975; Ex. B6 Thirdparty affidavit -dt.08.05.1984; Ex. B7-Notice U/s. 9(3) & (10) of the Land Acquisition Act, issued by Tahsildar-LAO Mylavaram-dt.01.03.1982; Ex. B8-Certified copy of Registered sale deed No. 125/dt.23.03.1961 of Sub-Registrar's office, Madhira; Ex. B9-CC of sale deed(Urdu Language); Ex. B10-CC of order of the Land Reforms Tribunal-II, Khammam in CC 540/MDK, dt.28.06.1977; Ex. B11-Levy paddy delivery receipt-dt.20.01.1975; Ex. B-12-Levy paddy delivery receipt-dt.08.01.1975; Ex. B13-Rough sketch/plan of the lands situated at Rayanpadu and Ex. B14-Proceedings of the Land Reforms Tribunal, Vijayawada in CC4/VZA/75-dt.03.03.1978." 5. B9-CC of sale deed(Urdu Language); Ex. B10-CC of order of the Land Reforms Tribunal-II, Khammam in CC 540/MDK, dt.28.06.1977; Ex. B11-Levy paddy delivery receipt-dt.20.01.1975; Ex. B-12-Levy paddy delivery receipt-dt.08.01.1975; Ex. B13-Rough sketch/plan of the lands situated at Rayanpadu and Ex. B14-Proceedings of the Land Reforms Tribunal, Vijayawada in CC4/VZA/75-dt.03.03.1978." 5. From the above material and after hearing both sides in answering the lis covered by the issues supra, the trial court held that plaintiffs, who are branch of Nagabushanam(elder brother of defendant-Lakshmi Narasimha Rao) and defendant were not living together, as plaintiffs are living at Khammam and defendant at Yerrupalem, much less living jointly even during life time of Nagabushanam and in view of the contest by defendant that, on 12th day of death of their father, the defendant and Nagabushanam (father of Plaintiffs 2-7) partitioned their properties through elders and since then living with separate possession and enjoyment of the properties, as D.W.2-Hari Subrahmanyam deposed in corroboration to the evidence of D.W.1-defendant about the partition in the year, 1944 on the 12th day ceremony of defendant's father and that there was a partition list prepared on that day regarding the movable and immovable properties partitioned and both parties signed and one copy given to defendant and another copy to Nagabushanam, that D.W.3-Tahasildar, Jaggaiahpet in May ,1984 deposed that he attested the Ex. B6 affidavit given by Sadu Ramakrishnaiah stating Nagabushanam and Lakshmi Narasimha Rao are his sister's sons and in June, 1944 the defendant's marriage was celebrated at Yerrupalem and on 15th day of marriage, their father-Ramakrishnaiah died and he attended the obsequies, besides other sons' in law Hari Sitaramaiah & Hari Venkatappaiah Sharma and the movable and immovable properties left by Radha Krishnaiah were divided by Nagabushanam and Lakshmi Narasimha Rao in the presence of elders and the residential house at Yerrupalem, dry land of Ac.17.92 cents at Rayanpadu village, wet land of Ac.4.11 cents at Velagaleru village were still existing, which was being enjoyed separately as other lands at Kondapalli, Ibrahimpatnam, Kethamkonda, Elaprolu and Trilochnapuram were sold by both of them. D.W.3 deposed that after Sadu Rama Krishnaiah putting his thumb impression on the affidavit, by then was paralytic-as mentioned in the affidavit, he attested. Plaintiffs' contention of said affidavit is a forged document brought into existence with the help of son of Sadu Rama Krishnaiah, who is acquainted with D.W.3 is not to believe. D.W.3 deposed that after Sadu Rama Krishnaiah putting his thumb impression on the affidavit, by then was paralytic-as mentioned in the affidavit, he attested. Plaintiffs' contention of said affidavit is a forged document brought into existence with the help of son of Sadu Rama Krishnaiah, who is acquainted with D.W.3 is not to believe. Plaintiffs and defendant filed applications to examine Sadu Rama Krishnaiah on commission and the Court allowed defendant's application in I.A. No. 1575 of 1985 dt.21.11.1985, however, subsequently the defendant not pressed the same saying witness not in a position to speak. Plaintiffs application in I.A. No. 448 of 1986 even allowed later on 24.04.1986, they could not examine the witness as said witness was not available in the village as per the Commissioner's report and said Rama Krishnaiah as on date of judgment was however no more. Even D.W.1-defendant admitted in his cross examination that during, 1946 they were holding some properties in joint and later they jointly sold the lands of Ibrahimpatnam in the year, 1946 and also during 1946-1947 they jointly sold lands at Kondapalli by oral sale; some properties were held by them jointly and later sold even after 1944 jointly, the plaintiffs' claim of as if all the 7 items of plaint schedule held jointly by date of death of Nagabushanam is not correct. Apart from it, plaintiffs claim of the item 1-1200 square yards site purchased by Nagabushanam and defendant jointly and Nagabushanam paid Rs. 500/- towards half share, that was disputed by defendant and P.W.1 stated that it was purchased for Rs. 1,000/- and her husband paid Rs. 500/- to his share and defendant obtained sale deed in the absence of her husband, in his name and when questioned promised to give half share and it shows, it is only jointly purchased and not joint family property and it is not even the case of plaintiffs that it was acquired with the joint family funds and thus it cannot be treated as joint family property of late Nagabushanam and defendant. Even coming to item 2, as per Ex. A.3-order in A.T.C. No. 8/1984, Ex. A.4-order in C.M.A. No. 151/1989 and Ex. Even coming to item 2, as per Ex. A.3-order in A.T.C. No. 8/1984, Ex. A.4-order in C.M.A. No. 151/1989 and Ex. A.5-High Court Revision Order in R.P. No. 4054/1989, show the disputes with the tenants arisen in 1975 and the High Court delivered possession of their share and they cultivated the same, as per P.W.1's cross-examination admission and thereby there is no land further that has fell to their share in item 2-Rayanapadu; as through Court they have taken delivery of possession in 1991, that even P.W.4 deposed that earlier he cultivated said land while in the joint possession of Nagabushanam and Lakshmi Narasimha Rao and later those were jointly cultivated. He also admitted that in the year, 1991 plaintiffs cultivated the land of Ac.8.00 cts and odd and remaining the defendant cultivated and thus there was no dispute between the plaintiffs and defendant with regard to the item 2, as the police delivered possession of said land on the application of plaintiffs to police within the boundaries described in the application by them, for which the defendant not raised any objection and the remaining land is in the possession of defendant and thereby said item 2 of the plaint schedule cannot be said joint family property of plaintiff and defendant being liable for partition. That even regarding item 3-residential house No. 3-9-88 at Khammam claimed by plaintiffs as joint family property, the defendant disputed the claim as it was allotted to him by the municipality and P.W.1 admitted that her husband also applied for quarters from Government and it was not allotted in the name of her husband; that in her claim of it is also the joint family property, no more material placed to say the same was purchased with joint family income to treat as joint family property. That for item-4 residential house at Yerrupalem, P.W.1 admitted that the defendant divided the ancestral house and gave one portion to them and kept another portion with him and one Satyanarayana was tenant in their portion, which is the southern side and that also establishes the defendant's contention of partition earlier and as such item-4 also cannot be treated as joint family property. That coming to item-5 lands of Yerrupalem, defendant contends the same as exclusive property of Nagabushanam who purchased subsequent to their partition of the year, 1944 and P.W.1 did not produce any document to show the same as joint family property and Ex. B.8-registered sale deed dt.23.03.1961 filed by defendant shows it was purchased by Nagabushanam and when the defendant is not claiming any share therein, it cannot be treated as joint family property for partition. That, item 6-shop No. 50 of Madhira and shop No. 61 of Yerrupalem both fertilizer shops started by the defendant as per plaintiffs with joint family funds and as per defendant, the joint family has nothing to do with and P.W.1 not stated anything specially against the claim by defendant of his and by denying any joint family funds invested in the fertilizer shops, that there is nothing to say joint family funds invested to support the plaintiffs contention of defendant has no source of income to start the business other than with joint family funds. However, P.W.1's evidence show the defendant was bringing cloth from Madras and was selling in villages and also worked as press reporter and used to do P.W.D. contracts. Thus, it cannot be said that defendant has no source of income. As such, it is not the joint family property. That, coming to item-7, Ac.2-00 cents land at Velagaleru claimed as joint family property by plaintiffs, P.W.1 deposed that about 4 or 5 years back revenue authorities divided the Velagaleru lands and defendant sold his share and plaintiffs have their Ac.1.00 of land. P.W.5 resident of Velagaleru deposed that in Velagaleru, there was joint property of Nagabushanam and Lakshmi Narasimha Rao which he cultivated and used to pay lease amounts to Nagabushanam and his paternal uncle to pay to defendant and of which five years back Government acquired Ac.2-00 cts and the defendant sold some more extent and the remaining Ac.1-00 cts is in his cultivation and when that evidence speaks the lease amounts paying separately to defendant and Nagabushanam by P.W.5 and his senior paternal uncle and defendant also sold Ac.1.00 cts of land after Government acquired Ac.2.00 cts, there remained Ac.1.00 cts that of Nagabushanam (plaintiffs) and said item-7 of plaint schedule cannot be treated as joint family property. Thus, thereby there is no joint family property in between plaintiffs and defendant as on date. Regarding Ex. Thus, thereby there is no joint family property in between plaintiffs and defendant as on date. Regarding Ex. A.9 Will executed by Nagabushanam-dt.02.12.1983, scribe and attestors are not examined to prove the same for claim of plaintiffs to the suit property thereunder even though defendant denied execution of the Will; thus by relying on the Will, plaintiffs cannot claim the suit properties as joint family properties and the so called management of suit properties by defendant is not correct as Nagabushanam also managed and used to receive rents from tenants. The land reforms declaration in the name of defendant, so also levy paddy receipts, showing both the brothers were holding their ancestral properties separately and as such from their separate living, they did not constitute Hindu Mitakshara joint family and as such, the suit schedule properties are not joint family properties of them, but for in their exclusive respective possession. Even coming to item 1 relying upon Ex. A.2-entry in Ex. A.1 note book maintained by Nagabushanam of Rs. 500/- paid out of Rs. 1,000/- towards consideration of the 1200 square yards there is no other document; that in the plaint even pleaded as Nagabushanam was in Government service and sale deed was obtained by defendant, but P.W.1 deposed that in the absence of her husband, defendant obtained sale deed in his favour without the knowledge of her husband and even coming to P.W.2's evidence, he deposed that out of the 1200 square yards, southern side half is that of Nagabushanam and Nagabushanam called him to draw a plan and he separated the southern side 600 square yards in the presence of defendant and 1stplaintiff in the year, 1975; that Nagabushanam laid foundation stone and he has drawn plan for 6 rooms house for Nagabushanam, but it is oral. No record is placed and he could not say that plan was submitted to the municipality or not and later Nagabushanam constructed the house or not as per the plan. No record is placed and he could not say that plan was submitted to the municipality or not and later Nagabushanam constructed the house or not as per the plan. What PW2 deposed of he verified the title deed saying the site purchased jointly by Nagabushanam and defendant which is contra to the plaint averments and P.W.1's evidence of the same stands in the name of defendant and even for P.W.3 claimed running vegetable shop in that site, he did not obtain any permission from municipality for doing business and he worked under Nagabushanam in Multi Purpose High School and out of that acquaintance, he used to come to Nagabushanam and was present at the time of laying foundation stone and according to him the foundation stone laid in the 1200 square yards was in the year, 1974-75 and deposed that as he apprehends that the plaintiffs may ask him to vacate from the site he is giving evidence, which show he is not aware of the real dispute within the parties to give any credence and from the item 1 of plaint schedule property stands in the name of defendant, plaintiffs cannot claim any right and as such plaintiffs are not entitled to partition and separate possession or profits and thus dismissed the suit claim in toto. 6. Said findings of the trial court dismissing the plaintiffs' suit claim is impugned in the appeal filed by the plaintiffs 1-7 against the defendant. During pendency of the appeal, the 1stplaintiff-1stappellant died and the appellants 2-7 being her LRs was recorded as per orders in C.M.P. No. 2774 of 2001-dt.30.03.2001 and later 4th appellant died and his LRs were brought on record as appellants 8 & 9 in C.M.P. No. 8733 of 2002-dt.26.04.2002 and since 2nd appellant died, his LRs were also brought on record as appellants 10-12 in A.S.M.P. No. 195/2011-dt.25.01.2011 & 5th appellant died as bachelor and memo recorded of 3rd appellant represents his interest as per order-dt.06.12.2012 in A.S.M.P. No. 2889 of 2012. Further sole defendant died and his LRs were brought on record as respondents 2-6 as per C.M.P. No. 5270 of 1999, order dt.09.03.1999 and 7th respondent-Jana Chaitanya housing Pvt. Ltd. rep. by its Managing Director (being referred as 'the society') was impleaded as per orders in C.M.P. No. 8909 of 2001-dt.05.11.2001. 7. Further sole defendant died and his LRs were brought on record as respondents 2-6 as per C.M.P. No. 5270 of 1999, order dt.09.03.1999 and 7th respondent-Jana Chaitanya housing Pvt. Ltd. rep. by its Managing Director (being referred as 'the society') was impleaded as per orders in C.M.P. No. 8909 of 2001-dt.05.11.2001. 7. The contentions in the grounds of appeal by the appellants are that, the approach of the trial court in O.S. No. 60/1984 is contrary to the well settled principles of law, that the decree and judgment dismissing the suit claim are contrary to law and weight of evidence, that the trial court failed to consider the case of the appellants in a proper perspective and failed to see that the burden lies on the defendant about alleged partition in the year, 1944 and trial court's findings on items 1-6 of Nagabushanam managed the properties and used to receive rents from tenants is contrary to the admissions of the defendant and other evidence available on record, that as Ex. P9 Will execution is not disputed by the defendant, that the rejection of evidence on behalf of the plaintiffs by the trial court is erroneous and as such the decree and judgment of the trial court in O.S. No. 60 of 1984 is liable to be set aside by allowing the appeal. 8. It is also necessary to mention that: "(8.a). Item 2 of the plaint schedule property (land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village) was sought to delete from the properties to be partitioned in view of possession taken through police as per Court order after finalisation of the tenancy lis and later appellants filed C.M.P. No. 5271 of 1999, to include said item and also filed another application for appointment of commissioner in C.M.P. No. 2773 of 2001 for demarcation of the property and to note the physical features etc., which are opposed by the respondents by counter contest including in saying the bar under Order XXIII Rule 1 C.P.C. applies to re-include the item and there are no grounds to appoint Advocate commissioner for the property to demarcate as already separated. (8.b). Apart from that, the appellants filed application under Order XLI Rule 27 C.P.C. to receive additional evidence covered by A.S.M.P. No. 4351 of 1992 viz., (1). Regd. (8.b). Apart from that, the appellants filed application under Order XLI Rule 27 C.P.C. to receive additional evidence covered by A.S.M.P. No. 4351 of 1992 viz., (1). Regd. sale deed No. 1393-dt.12-06-1951, executed jointly by Nagabushanam and Lakshmi Narasimha Rao and their sons as undivided and minors rep. by them respectively for Ac.8-24 cents inam dry in D. No. 125 (patta No. 201) of Yerrupalem (v) referring as their ancestral property with joint possession and enjoyment in favour of one Mandadi Venkayamma; (2). Regd. sale deed No. 1204-dt.15-04-1959, executed jointly by Nagabushanam and Lakshmi Narasimha Rao and their sons as undivided and minors rep. by them respectively for Ac.8-93 cents inam dry in TA. No. 564 (S. No. 31) of Kotikulapudi (v) referring as their ancestral property with joint possession and enjoyment in favour of Jonnalagadda Ramakotaiah and Palle China Ramaiah; (3) Regd. notice dt.10.12.1948 issued by Nagabushanam to Damerla Bhasker Rao-tenant of Ac.6-16 cents inam dry land in D. No. 2/2 belongs to him and his brother with joint enjoyment saying the tenancy was to expire by 31-03-1949 and hence to vacate without raising any crops; (4) Regd. notice dt.18.12.1950 issued by Nagabushanam to Malnidi Pichaiah-tenant of Ac.8-93 cents inam dry land in D. No. 31 belongs to him and his brother with joint enjoyment saying the tenancy was to expire by 31-03-1951 and hence to vacate without raising any crops; (5) Letter stating on 05.06.1952 ploughed by receiving Rs. 14/-for two days with bullocks plough the land of Ac.10.56 cents Ponugubeedu in D. No. 99 of Ibrahimpatnam belongs to Nagabushanam and his brother in their joint possession and enjoyment in personal cultivation; (6) Letter stating on 04.06.1952 ploughed by receiving Rs. 77/-for eleven bullock-ploughs the land of Ac.10.56 cents Ponugubeedu in D. No. 99 of Ibrahimpatnam belongs to Nagabushanam and his brother in their joint possession and enjoyment in personal cultivation; (7) Letter stating on 05.06.1952 ploughed by receiving Rs. 63/-for two days with bullocks plough the land of Ac.10.56 cents Ponugubeedu in D. No. 99 of Ibrahimpatnam belongs to Nagabushanam and his brother in their joint possession and enjoyment in personal cultivation; (8) One year lease letter dt.10.06.1948 executed by Malnidi Pichaiah for the land of Ac.08.93 cents in D. No. 31 of Kotikulapudi jointly belongs to Nagabushanam and his brother for fasli 1358 on rent of Rs. 460/-; (9) One year lease letter dt.29.06.1944 executed by Edduri Seetha Ramaiah for the land of Ac.08.93 cents in D. No. 31 of Kotikulapudi jointly belongs to Nagabushanam & his brother for fasli 1354 on rent of Rs. 450/-; (10) Offer letter dt.08.06.1950 executed by Pachalla Lakshmi Narayana for purchase of the land of Ac.01.80 cents in D. No. 260/3 of Eelaprolu jointly belongs to Nagabhushanam and his brother Lakshmi Narasimha Rao for Rs. 2500/-; (11) One year lease letter dt.12.06.1947 executed by Pagadala Achaiah for the land of Ac.08.93 cents in D. No. 31 of Kotikulapudi jointly belongs to Nagabushanam & his brother for fasili 1357 on rent of Rs. 525/-; (12) One year lease letter dt.11.06.1948 executed by Damerla Bhasker Rao-tenant of Ac.6-16 cents inam dry land in D. No. 2/2 jointly belongs to Nagabushanam & his brother for fasili 1358 on rent Rs. 125/-; (13) One year lease letter dt.02.06.1952 executed by Malnidi Pichaiah for the land of Ac.08.93 cents in D. No. 31 of Kotikulapudi jointly belongs to Nagabushanam and his brother for fasili 1362 by payment of Rs. 400/- and chillies etc; (14) One year lease letter dt.21.05.1947 executed by Damerla Bhasker Rao-tenant of Ac.6-16 cents inam dry land in D. No. 2/2 jointly belongs to Nagabushanam & his brother for fasili 1357 on rent of Rs. 150/-; (15) One year lease letter dt.27.05.1953 executed by Malnedi Pichaiah for the land of Ac.08.93 cents in D. No. 31 of Kotikulapudi jointly belongs to Nagabushanam & his brother for fasili 1363 on rent of Rs. 600/-; (16) One year lease letter dt.22.07.1955 executed by Chalasani Venkateshwara Rao for the land of Ac.10.56 cents Ponugubeedu in D. No. 99 of Ibrahimpatnam jointly belongs to Nagabushanam & his brother for fasili 1365 on rent of Rs. 550/- and (17) One year lease letter dt.19.07.1954 executed by Chalasani Venkateshwara Rao for the land of Ac.10.56 cents Ponugubeedu in D. No. 99 of Ibrahimpatnam jointly belongs to Nagabushanam and his brother for fasili 1364 by payment of Rs. 650/-; (8.c). The respondents also filed application under Order XLI Rule 27 C.P.C. to receive additional evidence in A.S.M.P. No. 1878 of 2011 viz., (1). Regd. 650/-; (8.c). The respondents also filed application under Order XLI Rule 27 C.P.C. to receive additional evidence in A.S.M.P. No. 1878 of 2011 viz., (1). Regd. sale deed No. 449/1996, dt.12-03-1996, executed by Plaintiffs for Item II of plaint schedule Rayanpadu village in favour of one B. Tata Rao, with recitals of Nagabushanam died intestate and thereafter they partitioned their properties evidenced by list dt.20-10-1990; (2). Regd. sale deed Nos. 382&383/2007, dt.29-01-2007, executed by 8th appellant-wife of late 4th appellant (4th Plaintiff) for Item V of plaint schedule, Yerrupalem village in favour of one J. Durga w/o. Panduranga Vital, with recitals show partition; (3). Writ Petition No. 3897/1996 filed by the appellants against MRO, Vijayawada rural and SHO, Rayanpadu police station to complete the survey of subdividing item 2 of the plaint schedule property (land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village) and in the writ petition affidavit of 1st appellant stated that after death of her father-in-law, her husband and his brother (defendant) being his sons get the land with equal shares, viz., Ac.08.96 cents to her husband and remaining on the eastern side to the defendant with separate enjoyments; (4). Order copy of dismissal of said writ petition No. 3897/1996, dt.17-06-1996, with writ petition, counter and reply, GPA No. 11/1984, dt.08-03-1984 of Sub-registrar, Khammam showing from the recitals partition between Nagabushanam and Lakshmi Narasimha Rao; with petition affidavit of the documents except GPA dt.08-03-1984 are subsequent to suit and after filing of appeal and the delay in filing is neither willful, nor wanton, hence to receive and to exhibit in evidence on their side in the appeal." 9. From the above, it is the contention of the Counsel for Appellants reiterating the appeal grounds. Whereas, it is the contention of the Counsel for Respondents in support of the trial Court's dismissal judgement and decree saying for this court while sitting in appeal there is nothing to interfere, either on facts or on law and hence to dismiss the appeal. However, it is almost conceded in leaving to the discretion of the Court to the receiving of additional evidence of both sides respectively to exhibit as Ex. A.12-28 & B.15-22 and appreciate, but for reiterating respective contentions even from the additional evidence being received. 10. However, it is almost conceded in leaving to the discretion of the Court to the receiving of additional evidence of both sides respectively to exhibit as Ex. A.12-28 & B.15-22 and appreciate, but for reiterating respective contentions even from the additional evidence being received. 10. Perused the material on record and the propositions placed reliance by both sides in their respective arguments in the course of hearing of the appeal at length. The parties for sake of convenience are being referred as plaintiffs and defendant, even some of them died and their LRs brought on record. 11. From the above, the points now arise for consideration to decide the appeal lis are the following: "1) Whether there was any partition of the joint family properties between Nagabushanam and Lakshmi Narasimha Rao; on the 12th day of death of their father-Radha Krishnaiah in the year, 1944 and in the presence of all their kith and kin, from the father-in-law of Lakshmi Narasimha Rao raised the question of the properties and of its management and for immediate partition (which include the joint family properties admittedly covered by plaint schedule item No. 4-residential house situated at Yerrupalem village; item No. 2-agricultural wet land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village; item No. 7-agricultural land of Sy. No. 342/2/A of Velagaleru village); not to mention the other properties at Ibrahimpatnam, Kethampudi, Trilochnapuram, Elaprolu and Kondapalli villages-that were sold away by them even after, 1944 and while in joint possession as per respective admissions and contentions? No. 342/2/A of Velagaleru village); not to mention the other properties at Ibrahimpatnam, Kethampudi, Trilochnapuram, Elaprolu and Kondapalli villages-that were sold away by them even after, 1944 and while in joint possession as per respective admissions and contentions? 2) Whether the item 2 of the plaint schedule property (land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village) that was as sought for by plaintiffs in cause deleted from the properties to be partitioned in view of possession taken through police as per Court order after finalization of the tenancy lis is not for the total extent eligible and if so as per the appellants application filed in C.M.P. No. 5271 of 1999, to include said item is to be allowed for partition of equal half by working out equities of property therefrom alienated if any among them and also any need to consider the application in C.M.P. No. 2773 of 2001 for appointment of commissioner for division of the property equally and whether the same are not barred by law under Order XXIII Rule 1 C.P.C. as opposed by respondents-defendants-Lakshmi Narasimha Rao's LRs?. 3) Whether the plaint schedule item No. 3 House No. 3-9-80 of Jahirapur area, Guttalbazar, Khammam town allotted by the Municipality in the name of the defendant-Lakshmi Narasimha Rao is not the separate property of him but for part of the partiable joint family property of him and his elder brother Nagabushanam? 4) Whether the plaint schedule item No. 1 House site of 1200 sq.yds site at Burhanpuram, Khammam town was jointly purchased by Nagabushanam & Lakshmi Narasimha Rao for the benefit of both for Rs. 1,000/- and Nagabushanam paid his share of Rs. 500/-out of the consideration to Lakshmi Narasimha Rao (defendant) even Lakshmi Narasimha Rao obtained the registered sale deed in his name and it is also form part of the partiable properties between them? 5) Whether the plaint schedule item No. 6-two shops viz., shop No. 50-fertilizer shop situated at Madhira and shop No. 61-fertilizer shop situated at Yerrupalem village of Madhira Taluk were in the joint family sites and/or the business run with joint family nucleus by Lakshmi Narasimha Rao and if so, it is also part of the partiable joint family properties between them? 6) Whether the plaint schedule item No. 5-agricultural lands of Sy. No. 266-Ac.0.07 gts, Sy. No. 262-Ac.0.33 gts, Sy. No. 194-Ac.1.34 gts & Sy. 6) Whether the plaint schedule item No. 5-agricultural lands of Sy. No. 266-Ac.0.07 gts, Sy. No. 262-Ac.0.33 gts, Sy. No. 194-Ac.1.34 gts & Sy. No. 263-Ac.1.06 gts of Yerrupalem village, Madhira Taluk were acquired without any joint family nucleus by Nagabushanam and the same is not part of the partiable joint family properties between them to exclude? 7) Whether the additional evidence sought to be produced by the respondents-defendants is required to be allowed and permitted under law and if so with what observations? 8) Whether the additional evidence sought to be produced by the appellants-plaintiffs is required to be allowed and permitted under law and if so with what observations? 9) Whether the trial court's dismissal decree and judgment of entire suit claim is un-sustainable and requires interference by this Court while sitting in 1st appeal on facts and law with right of re-appreciation from entire matter at large and with what observations and conclusions? 10) Whether the plaintiffs are entitled for partition of all or any of the Plaint schedule properties against the defendant and his LRs-Respondents and the 7th respondent in claiming through them; and if so to what items and for what share, with what past profits and with what directions for future profits/accounting of management of the defendant and his LRs-Respondents if any? 11) To what relief?" 12. Before coming to decide above points 1, 3 to 6, 9 and 10; it is essential to decide above points 2, 7 and 8 in relation to the re-inclusion of item No. 2 of plaint schedule from earlier deletion, appointment of a commissioner for division of the property through surveyor to demarcate the boundary line between western and eastern halves and receiving of additional evidence sought for by respondents as well as appellants. 12(a). Point Nos. 7 & 8 (as to receiving of additional evidence sought for by the respondents in A.S.M.P. No. 1878 of 2011 as well as by the appellants in A.S.M.P. No. 4351 of 1992): In fact, for the Court's ability to pronounce Judgment effectively and efficaciously to put an end to the lis, this additional evidence is required to be received pursuant to its discretionary power vested by Order 41, Rule 27(i)(b). It is also laid down by the Apex Court in KRM Reddy v. M/s. Net work inc., 2008(1) ALT 10 (SC) that, though under Order 41 Rule 27(1)(a)(a) CPC, the Applicant/Respondent must show the ingredients as condition precedent required for adducing additional or further evidence; so far as the power of the Court concerned, under Order 41 Rule 27(1)(b) CPC, it is the duty of the appellate Court to consider the entire case on record and come to an independent conclusion in arriving at a just decision under Order 41 Rule 33 CPC from entire matter at large and in so doing where felt necessary of the additional evidence, no doubt to do justice between the parties and not to patch up the weakness of the evidence of any party. It is because ability to pronounce Judgment satisfactorily to the mind of the Court when requiring any additional evidence, the Court will not be precluded from permitting such additional evidence within its power. A reading of the material on record and from the respective hearing with reference to the respective documents within the scope of the appeal lis, this additional evidence is required to be received pursuant to the discretionary power vested by Order 41, Rule 27(i)(b) CPC as laid down in KRM Reddy(supra). Accordingly the documents are received and exhibited for reference as Ex. A.12-28 & B.15-22 for appreciation in the lis at relevant context of facts. Accordingly Point Nos. 7&8 are answered. 12(b). Point No. 2 - (In relation to the C.M.P. No. 5271 of 1999 for re-inclusion of item No. 2 of plaint schedule (land in R.S. No. 77 measuring Ac.17.92 cents of Rayanpadu village) from earlier deletion, appointment of a commissioner in C.M.P. No. 2773 of 2001 for division of the property through surveyor to demarcate the boundary line between western and eastern halves for the same are opposed by the respondents-defendant-Lakshmi Narasimha Rao's LRs of barred by law under Order XXIII Rule 1 CPC for re-inclusion and no need for appointment of commissioner for demarcation of boundary by division of the property equally). 12(b)(i). The background is that, pending the appeal, the item No. 2 of the plaint schedule Sy. 12(b)(i). The background is that, pending the appeal, the item No. 2 of the plaint schedule Sy. No. 77 to the extent of Ac.17.92 cents cause deleted (that now sought for setting aside the deletion order for re-inclusion) on the application of the appellants on 20.09.1994 vide CMP No. 14546 of 1994 with averments that, in said item No. 2 of the plaint schedule, they are entitled to half share and in the ATC proceedings they have taken possession of their half share out of it and the learned subordinate judge recorded a specific finding that they are in possession of their half share, that they were advised not to press the appeal with regard to said item No. 2 of plaint schedule and hence to delete the item No. 2 from the plaint schedule property. It was accordingly after hearing both sides ordered deletion of the item No. 2 of the plaint schedule from the plaint schedule as referred supra. It is now the application filed by the appellants in CMP No. 5271 of 1999 (about 4 years later to it) with the supporting affidavit of 4th appellant (Ch. It was accordingly after hearing both sides ordered deletion of the item No. 2 of the plaint schedule from the plaint schedule as referred supra. It is now the application filed by the appellants in CMP No. 5271 of 1999 (about 4 years later to it) with the supporting affidavit of 4th appellant (Ch. Sree Rama Chandra Murthy) that according to their contest in which they claimed that they are entitled to half share in the properties and in the ATC Proceedings finalized, they have to take possession of their half share out of total Ac.17.92 cents that was recorded by the learned Subordinate Judge and therefrom they were advised not to press in the appeal so far as item No. 2 of plaint schedule by its deletion and sought, accordingly that was allowed, that they entered into agreement with the Society for alienating their half share of Ac.8.96 cents western and applied to the MRO for sub-division into the two halves of the total extent and they filed writ petition No. 3897 of 1996 for Mandamus to direct the MRO to cause survey and sub-division that was ended in dismissal, that at the time of executing sale deed in favour of the Society, the land in their possession was cause measured and found the respondent(Lakshmi Narasimha Rao) in possession of excess extent more than what he is entitled and thereby they executed sale deed only for Ac.8-00 cents and for rest of Ac.0.96 cents not executed out of their half extent of Ac.8.96 cents western and thereby advised to file the application to re-include said item (practically to set aside deletion earlier made at their instance) from the averments that in view of the possession taken not by measurement but as per the Court order in the tenancy litigation from its finalization in CMP, as per the orders in CMP No. 5271 of 1999 and the same is to be now included. 12(b)(ii). The same was opposed in the counter affidavit filed by 6th respondent (Ch. V. Ramana) to the appeal with averments that P.W.1 in the evidence admitted that they got their half share of land in item No. 2 of the plaint schedule property in Sy. 12(b)(ii). The same was opposed in the counter affidavit filed by 6th respondent (Ch. V. Ramana) to the appeal with averments that P.W.1 in the evidence admitted that they got their half share of land in item No. 2 of the plaint schedule property in Sy. No. 77 of Rayanpadu out of the full extent and thereby they are estopped to raise the same having claimed taken possession of half share out of the total extent of Ac.17.92 cents and having cause deleted earlier, to re-include from saying they wanted to alienate the land of their share to the Society, that since the issue was settled and they have their half share western in possession the Court permitted deletion of item No. 2 from the plaint schedule property and therefrom the application for re-inclusion is not maintainable and they filed writ petition for subdivision that was dismissed, that it is not proper forum to file the petition for re-inclusion of Item No. 2 and there is no use to appoint advocate commissioner to cause measure item No. 2 for the same partitioned long back and both parties are in their respective possession and enjoyment and hence to dismiss the same. 12(b)(iii). 12(b)(iii). In the course of hearing, the learned counsel for the appellants submitted that there is no dispute on the factum of the plaintiffs are entitled equally to the half extent out of the total Ac.17.92 cents for the western, and the eastern by the defendant-Lakshmi Narasimha Rao and his legal heirs, leave about any truth in the alleged oral partition of 1944 that is required to be decided in the appeal and earlier withdrawal was not because of any effective partition, much less in 1944, but for through the Court after finalization of the tenancy lis cause run by the defendant through his son-in-law Sadu Gopal, that went against them in taking possession in the year, 1991 and later it is while cause measuring, found western equal half not within their possession for no actual division by metes and bounds so far after defendant admittedly managed the entire property with possession during tenancy lis from the year, 1975 with Potluri Nageswara Rao and thereby deletion out of said bonafides no way to the advantage of respondents (LRs of defendant) much less to contend or oppose for setting aside the deletion by re-inclusion to cause measure and demarcate the boundary line between western and eastern halves through commissioner sought for and when the re-inclusion is only for the said limited purpose and for nothing more to the admitted facts. 12(b)(iv). Whereas, it is the contention of the learned counsel for the respondents that having withdrawn item No. 2 by cause deleted voluntarily saying they have taken possession after finalization of the tenancy lis as per orders of this Court, Order XXIII Rule 1 CPC bars to re-include the excluded claim of the lis that tantamount to abandonment of the claim and this Court has no power to permit to re-include and hence to dismiss the same. 12(b)(v). 12(b)(v). Now the crux is whether this Court has no power to set aside the earlier order of deletion of the item by re-inclusion for the limited purpose of cause measuring and demarcating the Ac.8-96 cents western towards the share of the plaintiffs, for the remaining Ac.8-96 cents eastern, to the share of the defendant and his legal representatives-respondents to the appeal, notwithstanding the writ petition resulted dismissal for survey and demarcation as above from the present civil appeal matter held pending, the notice issued is for demarcation of total extent and not for sub-division as sub division is there into 77/1 & 2 for the western and eastern equal halves respectively(leave about it is cause made by the defendant or not). It is important to note that practically it is instead of driving the parties to maintain separate suit for fixation of boundary line by demarcation of the diving line of equal halves out of the total extent as held by the Apex Court Bechan Pandey v. Dulhin Janki Devi, AIR 1976 SC 866 that in a litigation long pending, final curtain held should be drawn on it by the Appellate Courts within their power under Order 41 Rule 33 CPC as the appellate Court is competent to grant a relief if found appropriate, no doubt not beyond the scope of the lis as the parties to the lis arrayed before this Court do not entitle for grant of any higher relief than what was claimed in the suit originally. As stated in Maxwell on Interpretation of Statutes (11th Edn.) where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its implementation." 12(b)(vi). Thus, it is to be seen whether the order of deletion to be set aside resulting its automatic inclusion to sub-serve the ends of justice, within the powers of the appellate Court either under Order XLI Rule 33 or Section 151 of CPC to put an end to the litigation and stop further litigation for the limited area of lis and to sub-serve the ends of justice as the inherent power has its roots in necessity and its breadth is coextensive with the necessity. In this regard, the Apex Court in Rajenprasad Gupta v. Prakash Chandra Mishra ( AIR 2011 SC 1137 ) held under Section 151 of CPC in dealing with a civil appeal No. 984 of 2006 by judgment dated 12.01.2011 referring to several earlier expressions including the celebrated judgments of the Full Bench of the Allahabad High Court in ILR 153 FB (1882) and the same was again followed in another Full Bench expression in Raj Narain Saxena v. Bhimsen, AIR 1966 Allahabad 84 at 87 that the Courts are to act on the principle that every procedure is permitted unless expressly prohibited. By referring to the powers and procedure and substantial rights and the scope in Rajenprasad Gupta (supra) held that there is no express bar in filing application for withdrawal of the withdrawal application as the rules of procedure are in fact handmaid and not mistress of justice. Section 151 C.P.C. gives inherent power to the Court to do justice unless expressly prohibited and there is no express bar in filing withdrawal application as the Courts are not to act upon the principle that civil procedure is to be taken as prohibited, unless it is expressly provided by the Code, but on the converse principle that civil procedure is to be understood as permissible till it is shown to be prohibited by the law and as a matter of general principle, prohibition cannot be presumed. As such, permitting withdrawal of application filed earlier for deletion of item-2 is maintainable to sub-serve the ends of justice. Here, no doubt this is not withdrawal of the pending application but withdrawal of the order permitted for deletion of the item by which now sought to be re-included, that too the same happened only in the pending appeal. The Apex Court in Balkrishna Ramachandra Kadam v. Sangeeta Balkrishna Kadam, AIR 1997 SC 3562 held that once the Court puts an end to the lis, within its scope, property of one in the occupation of the other or of joint can be ordered to separate and deliver, instead of refusing the relief and directing the parties to another civil suit from the vacuum in law. No doubt, it is a case relating to delivery of the immovable property to the wife though not within the scope of Section 27 of the Hindu Marriage Act, in extending the inherent power to so order. No doubt, it is a case relating to delivery of the immovable property to the wife though not within the scope of Section 27 of the Hindu Marriage Act, in extending the inherent power to so order. In this expression, it was held that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties. It was also held in Popular Muthaiah v. State rep. by Inspector of police 2006(3) SCC 245 at paras 30 & 31 page-260 that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties and it can be exercised in respect of even incidental or supplemental power irrespective of nature of proceedings; as it acts ex debito justitiae-to mean to do real and substantial justice in the lis for which alone the power exists inherently. In Nawabganj Sugar Mills v. Union of India, 1976-1-SCR-803 it was held that, though there are limitations on the powers of the Court, it cannot abandon its inherent powers. The inherent power has its roots in necessity and its breadth is coextensive with the necessity. In South Eastern Coal Fields Ltd. v. State of M.P., 2003(8) SCC 648 at paras-27 & 28 page-664 it was held that act of court does not confine to act of primary court, but even appellate or other superior court as it is an act of court as a whole. The Maxim actus curiae neminem gravabit-principle is not confined to erroneous act of court, but is applicable to all acts which the court would not have passed if correctly appraised of the facts and the law. In this context it is also just and necessary to refer the observations of the Apex Court in B.P.A. Anand v. S.A. Reddy, 2005(3) SCC 313 at 318 referring to-Law in the scientific era and the theory of dynamic positivism by Justice-Markandey Katju; Cicero on jurisprudence; Justinian's corpus juris civil is; Lord Denning's 'the due process of law' and from Hart's open texture of Law that- 'Justice is constant and perpetual wheel to render everyone that to which he is entitled. Justice is the disposition of the human mind to render every one the due. Law does not remain static or stand still; it does not operate in a vacuum. Justice is the disposition of the human mind to render every one the due. Law does not remain static or stand still; it does not operate in a vacuum. It moves continuously so as to serve the needs of the time. As social values and norms change, laws too have to be reinterpreted and recasted. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment of human relations by elimination of conflicts. An unusual fact situation posing issues for resolution is an opportunity for innovation'. Thus, Life if law generally speaking, is not logic but experience, which is the basis for development and evaluation of law. In fact legislation alone cannot radically change the fabric of society in a span of time. Attitude and values in the society have to change, for common good. In Merla Veera Venkata Satyanarayana Chowdary v. State of Andhra Pradesh, AIR 1980 AP 154 a Division Bench of this Court held that remedies are the life of rights, it is the availability of a right to sue in a Civil Court that turned the English law into a law of liberty and where a new combination of circumstances arise, it is incumbent upon the Court to apply rule of law which could be derived from the general principles in furtherance of justice. In Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi, AIR 1977 SC 1348 it was held that every Court is constituted for the purpose of rendering justice according to law and must be deemed to possess necessary and inherent power that of elasticity in its very constitution in exercise of or, as may be necessary, to do a right or undo a wrong in the Course of administration of justice. The Inherent power of Court as is well known can be denied only by way of statutory interdiction. However, it shall not be forgotten as held by the Apex Court Kulwant Kaur v. Gurdial Singh Malik, AIR 2001 SC 1273 relied upon, AIR 1955 SC 425 following the earlier expressions including of the Constitutional Bench that the CPC is designed to fecilitate justice but not to penalise and technicalities should not be allowed to stiffle justice. 12(b)(vii). From this, now it is to be seen from the defendant-respondent's contention perspective, the scope of Order XXIII Rule 1 CPC. 12(b)(vii). From this, now it is to be seen from the defendant-respondent's contention perspective, the scope of Order XXIII Rule 1 CPC. The provision in fact only deals with withdrawal of suit or abandoning of part of claim. It speaks that after the institution of a suit, the plaintiff may, as against all or any of the defendants abandon his suit or abandon part of his claim. Here, the facts are not such as Plaintiffs/Appellants did not say in seeking deletion of the Item by abandonment of their claim, but for saying delivery of the western half as per Court order affected and the defendants did not even dispute saying the western portion is not half of total extent but lesser to it, apart from nothing even waived or relinquished by Plaintiffs/Appellants, any portion of their half share in that item(western), but by the intervening circumstances and on the belief of half extent undisputedly entitled that is there of what is delivery taken for admittedly not cause measured, which really is not for shortage in the extent found, that too the defendant having acknowledged that half in his written statement referred in para-2(b)(ii) supra, cannot say any hostile title or right against, from any little extent out of it in his occupation for no animus possessandi and that too even he admittedly managed during pendency of earlier tenancy litigation which is permissive and later there was admittedly no actual division pending suit/appeal while taking the possession. 12(b)(viii). Order XXIII Rule 1 of CPC:-where the Court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim, it may, on such terms, as it pleases to grant permission to withdraw from such suit or as the part of claim with liberty to file fresh suit in respect of subject matter of such suit or such part of claim. Where the plaintiff abandons any suit or part of claim under sub-rule 1, or withdraws from a suit or part of a claim without the permission referred to in Sub Section 3, he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim. Nothing in this Rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub Rule 1, or to withdraw, under Sub rule 3, any suit or part of a claim, without the consent of other plaintiffs. This Rule is based on public policy and even appellate Court can permit withdrawal of the suit. Here, the application for deletion of item No. 2 is made only pending the appeal that is permitted under the assumption of western half extent of the item taken delivery through the court order, practically not and it was happened only in the appeal and not even during pendency of the suit. Pending appeal the application to re-include is filed which is indirectly asking the court to recall the order permitting withdrawing the earlier application for deletion for the inadvertent lapse. In fact, it was held by this Court under Section 148 C.P.C. for enlargement of time that the time can be extended even after expiry of the time originally granted or permitted; by the time of application for the extension made to sub-serve the ends of justice as per the expression in G. Mahava Rao v. The Regional Transport, 1970(1) ALT 291 : 1969(2) APLJ 57. Here, from the above, it is to be seen the application for withdrawal is filed to mean from possession taken and relief believed satisfied in this regard and not for deletion of the item from plaint schedule and not even said deletion from the decree schedule, much less by relinquishment or giving up any right over any extent of the property and that too it was permitted undisputedly vide CMP No. 14546 of 1994 in the appeal stage from that subsequent event. So far as the abandonment under Order XXIII Rule 1 is concerned, there is no application required at all. On perusal of the application it shows it was filed and permitted under Section 151 CPC and not even under Order XXIII Rule 1 CPC. Once permission is accorded to delete, it does not mean without leave to re-include if necessary and within the inherent power of the Court that too, from the appeal is still pending and the application to reinclude is filed so to permit. 12(b)(ix). Once permission is accorded to delete, it does not mean without leave to re-include if necessary and within the inherent power of the Court that too, from the appeal is still pending and the application to reinclude is filed so to permit. 12(b)(ix). Apart from no bar under Order XXIII Rules 1 and 3, even any principles of obiter or estoppel or waiver much less resjudicata have no application for the partition suit between co-owners from the recurring cause of action even there is withdrawal of earlier suit, on the subsequent suit for partition; when such is the case, from deletion of the item No. 2 for either to set aside the deletion order to restore or for its re-inclusion-vide decisions P. Paul James @ palus v. P. Jesudsu Syri 1996 AIHC 1462(Madras) relying upon Vearmachatteiar v. Kothapudayar, AIR 1934 Madras 485 & Subbarao v. Jagannadha Rao, AIR 1967 SC 591 that any compromise is not a decision by the Court by its acceptance to something in which parties had agreed which merely sets the seal of the Court on the agreement of parties and Court does not decide anything nor give it up stating that a decision of the Court implicit in it. 12(b)(x)(a). It is also apt to refer what is held by our High Court in P. Subbalaxmi v. P. Ramya, 2011 (1) ALT 256 at para-29 that the rights of the parties are no doubt to be decided according to the relevant principles of law. However, in the matter of moulding the reliefs, the Court cannot remain obvious to the facts mentioned alone but also to other attending facts and circumstances of the case. Same is also the position of law with regard to the appellate court powers under Order 41 Rule 33 CPC not only to pass an order or decree that the trial court ought to have passed, but also while sitting in appeal against, irrespective of the appeal filed is challenging even part of the order or decree of the trial court, to grant any further decree or order within the scope of relief, though not beyond, as the case may require within the facts and circumstances, which include subsequent events to take note of in so moulding the reliefs-Vide S. Nazeer Ahmed v. State Bank of Mysore 2001 (11) SCC 75. 12(b)(x)(b). 12(b)(x)(b). Having regard to the above, there is no any legal bar in the present facts from the application filed to delete and permitted in saying possession taken through Court as per finalization of the tenancy lis laid by son-in-law of the defendant/1st respondent to the appeal since died represented by legal representatives, and it is in saying the western half taken by the plaintiffs and the eastern half taken by the defendant-Lakshmi Narasimha Rao in equal extents out of the plaint schedule item No. 2 and there is nothing to say, at the time of delivery through Court property cause measured by metes and bounds but for on assumption. Admittedly, the land is sub-divided later and western half of plaintiffs as 77/1 and the eastern half of the defendant as 77/2 in equal extents. When such is the case, instead of driving to file another suit for fixation of boundary and demarcation of the boundary line of the eastern and western halves to permit re-inclusion by directly modifying the order of deletion by considering the prayer to that tantamount to re-inclusion, even otherwise within inherent power of the Court under Section 151 CPC and under Order XVI Rule 33 CPC to sub-serve the ends of justice. 12(b)(xi). Now coming to the scope of the warrant of the Commissioner to be appointed for said division by demarcation and delivery concerned, no doubt, the additional evidence received as per A.S.M.P. No. 1878 of 2011 filed by the respondents(L.Rs. of defendant) to the appeal consisting of - "1) Registered sale deed No. 449 of 1996 dated 12.03.1996 executed by the plaintiffs (part of the item No. 2 of plaint schedule of Rayanpadu village in favour of one B. Tatarao with recitals that, it is the part of ancestral property of Ch. Nagabhushanam i.e. husband of executants No. 1, father of No. 2 and grandfather of 3 and 4 for the extent 259 sq. yards in plot No. 189 in RS. No. 77/1 and on their partition in the year, 1990 covered by partition list A-schedule devolved to the share of the first executant of Ac.1-60 cents and the same was divided into plots and the document schedule is part of it for consideration of Rs. 19,425/-. Undisputedly, the suit is filed by the plaintiffs in O.S. No. 60 of 1984 on 01.05.1984 as detailed in page 1 of this appeal judgment. 19,425/-. Undisputedly, the suit is filed by the plaintiffs in O.S. No. 60 of 1984 on 01.05.1984 as detailed in page 1 of this appeal judgment. The recitals in this sale deed referred it shows that so called partition of the property occurred in the year, 1990. When such is the case, this so called recital does not improve the contention of the defendant, much less to prove alleged oral partition of 1944 between the said Nagabushanam and defendant Lakshminarasimha Rao(the brothers), so also even from the alleged recital as a subsequent event pending suit, no way improve contention of the defendants. 2. Even coming to 2nd document sale deed dated 20.09.2007 executed in favour of Jamalapurapu Ramadevi of Yerrupalem executed by Shankaramanchi Kamala Kumari wife of late 4th plaintiff (Ch. Sree Rama Chandra Murthy) for the property of Sy. No. 191/A admeasuring Ac.0.23 guntas, Sy. No. 187/A/1 Ac.0.05 guntas, single plot of Ac.0.28 guntas of Yerrupalem village, Khammam district which is not part of the plaint schedule for not correlating either to the item No. 4 or item No. 5. The recitals speak that the said property belongs to the executant and she obtained pattadar passbook and in possession and enjoyment with title and sold on consideration for family necessities. Thus, this property no way relates to plaint schedule any of the items, so there is no purpose in filing this sale deed, much less, any relevancy from the recitals to receive as additional evidence. 3. Coming to document No. 3 which is nothing but Writ Petition No. 3897 of 1996 filed by the plaintiffs 1 to 7 as petitioners against the Mandal Revenue Officer-Vijayawada Rural, Ch. Lakshmi Narasimha Rao-the defendant and the Station House Officer-Rayanpadu police station of Krishna District with supporting affidavit of first plaintiff Ch.Padmavathi, with prayer to issue appropriate writ/order/direction in the nature of mandamus to direct the 1st respondent (MRO) and his subordinates to complete the survey operations by sub-dividing total extent of Ac.17.92 cents in Sy. No. 77/1 of Rayanpadu village-(plaint schedule item No. 2). No. 77/1 of Rayanpadu village-(plaint schedule item No. 2). The affidavit of first plaintiff speaks that the said land belongs to Late Radhakrishnaiah (father of Nagabushanam and Lakshmi Narasimha Rao) and equally fell to the shares of Nagabushanam and Lakshmi Narasimha Rao, to say each got Ac.8-96 cents of which western side fallen to their share and they have been separately enjoying with metes and bounds without interference and the relationship to them with Lakshmi Narasimha Rao-(defendant) W.P.-2nd respondent is not fairly sound and he set up his son-in-law Sadu Gopal as if tenant for the Ac.8-96cents fell to their share and in the tenancy litigation which came up before the High Court in favour of the plaintiffs holding Sadu Gopal never a tenant and he was instigated by Lakshmi Narasimha Rao and they submitted representation to the MRO to survey the total extent of Ac.17.92 cents and sub-divide the same into two separate extents by allotting separate survey numbers for which the MRO issued proceedings dt.04.01.1996 directing both the parties to be present on 13.01.1996 for survey and demarcation of the equal extents and the plaintiffs even shown their inclination to cooperate but Lakshmi Narasimha Rao with malafide intention refused to cooperate and he is in possession of small extent of their land and unless the survey operations are conducted by measuring the total extent and fix up boundaries and sub-divided therefrom, it is impossible to know who is in possession of what extent and the officials sent by the MRO stated that they could not conduct survey without the help of Lakshmi Narasimha Rao; though it is their statutory duty to comply, if necessary, by taking police assistance for any obstruction by Lakshmi Narasimha Rao but not did so. Even when they offered to sell their land (the western Ac.8-96 cents), no purchaser came forward as there is no sub-division. Hence, they filed writ petition. 4. The 4th document is writ petition order copy-dt.17.06.1996 (dismissing the same) and the counter affidavit of Lakshmi Narasimha Rao as well as reply affidavit of the petitioners therein. Before referring to the order copy, coming to the counter affidavit of Lakshmi Narasimha Rao- 2nd respondent to the writ petition (no other than defendant to the suit pending in appeal even by then) with averments that he has been in possession and enjoyment of the lands in Sy. Before referring to the order copy, coming to the counter affidavit of Lakshmi Narasimha Rao- 2nd respondent to the writ petition (no other than defendant to the suit pending in appeal even by then) with averments that he has been in possession and enjoyment of the lands in Sy. No. 77 of Rayanpadu, that the writ petitioners' requested the MRO for survey and sub-division by fixation of boundaries and he received notice dt.06.09.1995 to appear and the Mandal surveyor surveyed the entire land and fixed boundaries, that the MRO has no manner of right to cause divide the land into two equal shares as he does not know the facts of the case and the litigation, if the writ petitioners got any grievance they have to file a civil suit, that the land was sub-divided long back as Sy. No. 77/1 is in the possession of writ petitioners and 77/2 is in his possession and the entire land in Sy. No. 77 is subject matter of the appeal A.S. No. 436/92 (the present one), as such, it is under subjudice and revenue authorities have no jurisdiction and the facts are suppressed in filing the writ petition, that on 13.06.1996 in their presence survey operations were conducted by the Mandal Surveyor who completed the field demarcation and writ petitioners endorsed the same to say the revenue authorities completed the job as complied by writ petitioners, that it is incorrect to say the boundaries not shown or he did not cooperate for the survey operations or he caused obstruction for conducting survey and sub-division, that though the writ petitioners sold away the land of their share to Jana Chaitanya Housing Private Limited through G.P.A. under registered sale deed, they suppressed the fact in filing the writ petition and said Society divided the land into plots and sold to several individuals and the plot holders gave notices while conducting survey and the writ petition thereby is not maintainable and the writ petitioners have no locus standi to file the petition for having sold away the land to the Society in the year 1993 by kept quiet of through but for from a dispute between the Society and themselves regarding the extents alienated and the plot purchasers not made parties to the writ petition to its maintainability and sought for dismissal of the writ petition. The reply affidavit filed by the 4th plaintiff Ch. The reply affidavit filed by the 4th plaintiff Ch. Sree Rama Chandra Murthy shows that he specifically denied the averments of counter-affidavit and stated that the so called sub-division and fixing boundaries by Mandal Surveyor, much less on 13.06.1996, is incorrect and the so called sale and execution of sale deeds to Society, in turn, to plot purchasers not correct and that relief in the writ petition may be granted." 12(b)(xi)(a). The orders passed by the High Court was in dismissing the writ petition with observations quoting contents of the notice issued by the MRO to the respondent-Lakshmi Narasimha Rao for completing the survey operations shows as follows:- "Smt. Cheedella Padmavathi submitted application for the purpose of survey the land for fixing the boundaries in Sy. No. 77 at an extent of Ac.17-92cents vide reference No. 29/95 dt.28.08.1995. On the above application the Mandal Revenue Officer issued proceedings that the Surveyor will be attended on 13.01.1996 at 9.00 a.m. Therefore, you are requested to kindly present along with records. Kindly acknowledge the receipt of the same." It shows that survey is to be conducted to fix boundaries for said total extent and O.S. No. 60 of 1984 filed in which this Ac.17-92 cents is subject matter (plaint schedule item No. 2) and against the dismissal of the suit they filed A.S. No. 436 of 1992 (the present appeal) which is pending, no doubt the writ petitioners stated that, said item was cause removed from plaint schedule vide order of the appellate Court, dt.06.10.1994 and as such, pendency of A.S. No. 436 of 1992 no way bearing much less obstacle to the conducting of survey and, however, Lakshmi Narasimha Rao, in his written statement, as sole defendant in the suit, categorically stated that the land was already sub-divided between them and they are in separate possession and enjoyment and in the writ petition affidavit also the first plaintiff as deponent averred of they have been separately enjoying the land with metes and bounds and thereby there is no justification for writ petitioners to insist for survey of the land by the MRO merely because the Society to whom they sold the property under contract for sale is insisting to conduct survey. As mentioned, notice issued by the MRO-dt.04.01.1996 is only for the purpose of fixing boundaries for entire extent of Ac.17.92 cents in Sy. As mentioned, notice issued by the MRO-dt.04.01.1996 is only for the purpose of fixing boundaries for entire extent of Ac.17.92 cents in Sy. No. 77 and not for sub-division though the revenue authorities are empowered under the provisions of the Act to determine and record the disputed boundaries, and held that the facts and circumstances supra do not warrant for taking any action and thereby the writ petition was ended in dismissal for no merits. 12(b)(xi)(b). Even from this, the writ petition affidavit, counter affidavit and reply and writ petition order, there is nothing in favour of the defendant to the suit-respondents to the appeal, to say there was any partition during lifetime of Nagabushanam-father of plaintiffs 2 to 7 and husband of 1st plaintiff much less of the year, 1944 and what all it can be understood from said affidavit, counter-affidavit, reply affidavit and order of the Hon'ble High Court is no way warrants interference particularly from the civil dispute pending of the suit ended in dismissal pending in appeal and from the writ petitioners say supports the contest of the Lakshmi Narasimha Rao as second respondent to the writ petition of the property was divided and western half was taken by them, eastern half by Lakshmi Narasimha Rao in equal extents and they have been in respective possession and enjoyment. From the above, taking additional evidence of these documents in support of the averments no way improve the case of Lakshmi Narasimha Rao, much less to substantiate alleged oral partition of 1944 in the lifetime of Nagabushanam. Further as per the written statement of the defendant Para 2(b) supra, there was tenancy litigation for the entire land of Rayanpadu in possession of P.N. Rao. 12(b)(xi)(c). None of the above additional evidence documents of the defendant and his LRs-respondents, disentitle the restoration of Item 2 to the appeal lis to decide for nothing shown of any actual partition by metes and bounds prior to suit or pending the suit lis so far of the Item 2, much less waiver of right over remaining extent out of the half extent of Item-2 from what is the extent in plaintiffs possession and any alienation of any part of it, much less dismissal of writ petition bar to the demarcation sought of the boundary between western and eastern halves of the item-2. 12(b)(xi)(d). 12(b)(xi)(d). As such, it is necessary for demarcation of the boundary line between the eastern and western halves of Ac.8-96 cents each covered by Sub-division 77/1 & 77/2 of the Sy. No. 77 total extent of Ac.17.92cents, Commissioner to be permitted to demarcate through Surveyor in directing the Lower Court to name the Commissioner for such division under equity as arranged in between them for filing of said petition for deletion and in now permitting to withdraw the same for said demarcation on land of boundary line between the western and eastern halves. Thereby, it is just to allow the petitions for re-inclusion of Item-2 of plaint schedule for demarcation of the boundary line between the eastern and western halves of Ac.8-96 cents each covered by respective Sub-divisions 77/1 & 77/2 of the Sy. No. 77 total extent of Ac.17.92cents. Accordingly, both the petitions-(CMP No. 2773 of 2001 & A.S.M.P. No. 5271 of 1999) are allowed by setting aside the earlier order for deletion tantamount to re-inclusion within the inherent power of the Court to say as if there is no order for deletion and for the Commissioner to be appointed for its division by demarcation and to deliver the deficit to the plaintiffs even in possession of the defendant and his LRs being permissive and mere licensees in the eye of law. Accordingly point No-2 for consideration is answered. 13. From the above findings on points 2, 7 & 8 respectively by restoration of item No. 2 of the plaint schedule, allowing of the additional evidence of both sides by receiving the documents and marked for reference as Ex. A.12 to A.28 and B.15 to 22; it is remained to decide the points 1, 3 to 6, 9 and 10. 14. A.12 to A.28 and B.15 to 22; it is remained to decide the points 1, 3 to 6, 9 and 10. 14. Before coming to decide above points 1, 3 to 6, 9 and 10; it is relevant to state the settled propositions of law, not only on proof and presumptions on existence of joint family, joint family property, partition or division in status, sufficiency of nucleus for subsequent acquisitions and whether subsequent acquisitions are separate or part of joint family, but also on appreciation of pleadings and evidence including with reference to the documents, in particular wills, entries in books of accounts, boundary recitals of documents, evidencing value of the same with reference to facts and circumstances, solemn duty of Court in ascertaining truth from trial of suit and duty and powers of the 1st appellate Court, including from the decisions cited by both sides that: "14(a.(i). Judging is not merely a job, but a way of life based a spiritual wealth that includes by obligation of an impartial search for truth. The greatest legal engine is ever invented for discovery of truth from the well-known saying that-Trial is a voyage in which trust is the quest-reiterated in by the Apex Court in Ritesh Tiwari v. State of UP, 2010 (10) SCC 677 . 14(a)(ii). Appreciation of evidence is thus part of the process in search for truth. Even in case of conflict between stability and truth, truth is preferable as truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation and justice. The entire judicial system has been created only to find out the truth as Truth alone triumphs, not falsehood. Through truth, the divine path is spread out by which the sages, whose desires have been completely fulfilled, reach where that supreme treasure of truth resides. Thus, it is the bounden duty of Judges in the journey of trial/enquiry to discover truth by application of procedural and adjectival law to decide the substantial rights -Vide decision Maria M.S. Fernandes v. Erasmo J. De Sequerio, AIR 2012 SC 1727 : 2012(3)ALT-SC-14. 14(a)(iii). The Law of Evidence is as old as the human civilization. Truth implies reality in two kinds viz., (1). Paramartha known as eternal truth-(with which we are now not concerned) & (2). 14(a)(iii). The Law of Evidence is as old as the human civilization. Truth implies reality in two kinds viz., (1). Paramartha known as eternal truth-(with which we are now not concerned) & (2). Yathartha known as factual truth-(with which we are now concerned), is to discern with the testimony of immediate perception in the here and now world, where subject-object duality is persistent. 14(a)(iv). Though, BHAVABUTHI a Sanskrit poet in his "UTTARA RAMA CHARITAM" said that unlike from saintly men, it is difficult to expect absolute truth from an ordinary being, however the court is to presume a witness on oath speaks truth and then appreciate his truthfulness or otherwise with reference to the material and surrounding circumstances. That is the great task of a Judge in appreciation of evidence to ascertain truth where lies among the disputants. 14(a)(v). NARADA, a saintly poet gave attention to many issues concerning the Indian philosophy and Hindu mythology in this regard and he summarised the rules of evidence in a nutshell that when any dispute arises between parties, he states that the party must check whether he has any document in his favour to substantiate his claim. If no document is available, the party must produce the direct witness who can testify on his behalf with regard to the facts under dispute. When neither a document nor a direct witness is available, third preference shall be given to inferences, which can be drawn by a prudent man with regard to existence or non-existence of relevant facts with reference to other facts and circumstances to draw necessary inferences. If with the help of above statement of NARADA, we venture to analyse the Indian Evidence Act, it is nothing but extraction and elaboration of above principle as stated by NARADA, that even under the Evidence Act, the court will prefer the documentary Evidence (subject to its probative value, requirement of stamp and registration and if not original on foundation for any secondary evidence) over oral evidence (subject to credibility of the witness) and it will prefer primary/direct-oral evidence from that of indirect oral evidence/circumstantial evidence, other than hearsay, subject to exceptions on admissibility of hearsay evidence. 14(a)(vi). Appreciation of Evidence is a judicial function and there shall not be any element of arbitrariness in appreciating the evidence. 14(a)(vi). Appreciation of Evidence is a judicial function and there shall not be any element of arbitrariness in appreciating the evidence. The logic behind appreciation of evidence is - A Judge who know nothing about the cause outside the four wall of the Court, but for what is brought to his notice by pleadings and evidence in proof of facts under controversy, can reasons and decide well. It is also in fact the logic behind the bane of justice. It is apt to refer the recent expression of the Apex Court in Om Prakash Chautala v. Kanwar Bhan, 2014 (5) SCC 417 at Paras-19 & 20 that, A Judge should abandon his passion. He must constantly remind himself that he has a singular master "duty to truth" and such truth is to be arrived at with the legal parameters. No heroism, no rhetorics. A Judgement has rhetorics but the said rhetoric has to be dressed with reason and must be in accord with legal principles, otherwise may likely to cause injustice. 14(a)(vii). The Rules of Evidence laid down in the Evidence Act have thereby special value to a judge, furnishing him with solid, systematic and well considered tests to arrive at truth. If the Evidence Act has no application, one has to necessarily follow the incidence of the Evidence Act as a law of evidence; else it is a difficult task to a judge to arrive at truth, for no systematic and definite alternative guidance to arrive at truth from over adjectival laws. 14(a)(viii). The whole exercise is by trial and in civil proceedings the object is to ascertain some right or property or status or right of one party and liability of other, to some form of relief by judgment which must not be based on surmises or conjectures, but upon facts relevant and duly proved by correct application of law. 14(b)(i). The functions of a Court of Justice are twofold viz., (1) to ascertain the existence or non-existence of certain facts and the method used to bring them before court of law (evidence) & (2) to apply substantive law to the ascertained facts and declare the rights, liabilities and duties etc. of parties in so far as they are effected by such facts. Unless the facts be correctly ascertained, however accurate be the application of substantive law, the result cannot be free from error. of parties in so far as they are effected by such facts. Unless the facts be correctly ascertained, however accurate be the application of substantive law, the result cannot be free from error. The Rules, which guide and assist in appreciation of evidence that are contained in the Indian Evidence Act thereby, are of great value. 14(b)(ii). Evidence Act is the foundation for proof. Appreciation of evidence to mean evaluation, assessment and estimation etc. of the evidence (oral, documentary, direct, circumstantial or real or combination of some or all - placed on record) judiciously with reference to factual and legal aspects (including legal fictions, burden of proof, presumptions, benefit of doubt, general/special exceptions, legal bars like Bar of limitation, Double jeopardy/Resjudicata and Estoppel etc.,) of a given case as to any fact in issue/for consideration is proved or not proved or disproved (to hold it as proved or not proved or disproved-it also depends upon the nature of the lis)- to say:-it is the proof by preponderance of probabilities-(the requirement-in cases of civil nature and for defence of accused in criminal cases or it is the proof beyond reasonable doubt (not beyond doubt)-(the requirement-in criminal cases) or it is in between (the requirement-in Election disputes to establish allegations of fraud and misconduct etc., and disputes relating to legitimacy and also in title suits-where the defence is denial of plaintiffs title) as the case may be, as per the requirement of Law from the nature of the case. 14(c)(i). Thus substantial rights are to be ascertained with reference to adjectival law-(rules of evidence and rules of procedure). The adjectival law facilitates the results to be obtained since the rights conferred on persons by substantive law will reach them through the process of rules of evidence and procedure. 14(c)(ii). As per M.C. Shetalwad, the Civil Procedural Law is based on the theory that there must be a full disclosure by each party of his case to the other, that rival contentions (in the pleadings) must be reduced as quickly as possible to the form of clear & precise points or issues for decision and there must be a prompt adjudication by the Court on those points. Justice delays not so much due to defects in procedure but by faulty application. 14(d). Justice delays not so much due to defects in procedure but by faulty application. 14(d). Coming to scope of pleadings need not embody law and legal terminology concerned; it is also the well-settled proposition of law on pleadings from S.B. Noronal v. Prem Kundi AIR 1989 SC 193 that, pleadings are not statutes and legalism is not verbatim. Common sense should not be kept in cold storage, when pleadings are construed. In Ram Sarup Gupta v. Bishur Narain Inter College, AIR 1987 SC 1242 referring to the expression of the Constitution Bench in Bhagwati Prasad v. Chandra maul, AIR 1966 SC 735 also of Sheodhari Rai v. Suraj Prasad Singh, AIR 1954 SC 458 and Trojan & Company v. R.M.N. Nagappa Chettiar, AIR 1953 SC 235 that it is not desirable to place undue emphasis on form, instead substance of pleadings should be considered; as the pleadings should receive a liberal and not pedantic approach as meant to ascertain the substance and not form, it only requires the opposite party to know. It is well settled that in the absence of pleadings; any evidence produced by parties generally cannot be considered. It is also equally settled that, no party should be permitted to travel beyond its pleadings with the object and purpose to enable the opposite party to know the case it has to meet. Keeping this object and purpose, though generally no plea, no evidence can be looked into and for no issue, no finding can be given; it is not always the static principle from the fact that even a plea not made specifically from deficiency in pleadings, but if covered by implication and evidence let in and parties know the case, it can be looked into and even to give finding no issue framed is of no bar to formulate a point and decide. The Apex Court in Bhagavathi Prasad (supra) by referring to Balmukund v. Dalu (03) 25 ALL 498 FB observed that it is undesirable and inexpedient to lay down any general rule in respect of such a situation (of evidence adduced fully by both sides on the question of title, a decree based on title can be given or not, for no plea), held that if Court is satisfied that the ground on which reliance is placed by one or other of the parties was, in substance, at issue between them, and both of them have had opportunity to lead evidence at the trial, the formal requirement of the pleading can be relaxed and the same is the proposition laid down in Ponnaipillai v. Pannai, AIR 1947 Madras 282. 14(e). On Burden of proof and onus probandi with reference to pleadings and appreciation; it was held by the Apex Court in Kalwa Devadatham V Union of India, AIR 1964 SC 880 that the question of onus probandi is certainly important in the early stages of the case. It may also assume important where no evidence at all is let in on the question in dispute by either side. In such a contingency, the party on whom the onus lies to prove a certain fact must fail. Where, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and truth or otherwise of the case must always be adjudged on the evidence led by the parties, burden of proof in such matters, loses its importance and pales its significance- also vide A. Raghavamma V. Chenchamma, AIR 1964 SC 136 & Smt. Premlatha V. Arahanth Kumar Jain., AIR 1973 SC 626 Thus, what is necessary is party shall aware of the plea and let in evidence for the Court to give finding from the hearing covering the lis, but not outside the scope, irrespective of who led what evidence by make use of entire evidence on record. It was also held in some of the expressions that even alternative remedy not pleaded if entitled, Court can grant it where it is appropriate to do so. It was also held in some of the expressions that even alternative remedy not pleaded if entitled, Court can grant it where it is appropriate to do so. In Balasankar v. Charity Commissioner, Gujarat, AIR 1995 SC 167 at para-19-it was similarly held that, burden of proof pales significance when both parties adduced evidence and it is the duty of the court to appreciate the entire evidence adduced by both sides in deciding the lis; also on the aspect as to party proved in possession of best evidence is bound to produce the same to throw light on the lis and to unfold any truth and thereby cannot take shelter on the abstract doctrine of burden of proof saying burden not on him to prove by filing the material document or producing the material witness-as laid down in NIC v. Jugal Kishore, AIR 1988 SC 719 (B) and Lakhan Sao v. Dharam Chowdary, 1991 (3) SCC 331 . Vide also Karnesh Kumar v. State of Utter Pradesh, AIR 1968 SC 1403 & Gopalakrishnaji ketkar v. Mahammad Haji Lathief, AIR 1968 SC 1413 , which followed the privy council's expression in Murugeshan Pillai v. G.S.P. Sannadhi, AIR 1917 PC 6 at 8 that "a practice has grown in Indian procedure those in possession of important document or information lying by, trusting to the abstract doctrine of onus of proof, and failing, accordingly, to furnish to the Courts best material for its decision. With regard to third parties this may be right enough- they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition, held that if a party in possession of best evidence which throws light on the issue in controversy withholds it, the Court ought to draw an adverse inference against him from non filing of the material document or non producing of the material witness, notwithstanding the fact that onus of proof not lie on him or because he was not called upon to produce it, by relying on the abstract doctrine of onus of proof". Same is relied upon in Sri Venkateshwara Oil Company v. Guduru Jalaja Reddy, 2002(1) ALD 182 DB. 14(f)(i). Coming to appreciation of evidence and interference by superior Court concerned; it was also laid down in this regard by the three Judge Bench of Apex Court in Iswar Prasad Misra v. Mohammad Isa, AIR 1963 SC 1728 that, Judicial experience shows that in adjudicating upon rival claims brought before the Courts, it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of the conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide within which exactly the truth lies. The impression formed by the judge about the character of evidence will ultimately determine the conclusion which he reaches. 14(f)(ii). In fact, it could be unsafe to overlook the fact that all judicial minds may not react in the same way to said evidence and it is not unusually that evidence which appears to be respectable and trustworthy to one judge may not appears to be so to the other. That explains why in some cases courts of appeal reverse conclusions of facts recorded by trial Courts on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such a cases will always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusion---- in our opinion, the use of such intemperate language may in some cases tend to show either lack of experience in judicial matters or an absence of judicial poise and balance--. Judges are not computers and thus bound to call in aid their experience in life and test with probabilities-vide - Chaturbhuj Pande v. Collector, Rayagarh, AIR 1969 SC 255 . 14(f)(iii). Judges are not computers and thus bound to call in aid their experience in life and test with probabilities-vide - Chaturbhuj Pande v. Collector, Rayagarh, AIR 1969 SC 255 . 14(f)(iii). It is also held that in assessing the value to be attached to oral evidence, particularly as Judge of fact, it is open to the appellate Judges to test the evidence placed before them on the basis of probabilities, irrespective of lack of effective or no cross examination by opposite party, Court is not bound to rely, if probabilities show otherwise, but for to consider in the facts if so to construe as admission from facts deposed supported by plea not disputed in cross examination as a rule of essential justice. vide - A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Calcutta 359. 14(f)(iv). Rules of justice require that the party cross examining must put the crucial and important part of his case to the witness of the other side in his cross-examination and if no question is put to the witness in the cross examination with regard to a certain fact challenging the same, then such fact has to be presumed to be true. No doubt for that conclusion it is to be seen, whether there is any pleading in this regard and in the absence of which, merely because the attention of the said stray sentence of the witness, inadvertently not drawn attention while cross-examination to put a question on it by itself does not amount to admission but for to read the entire evidence as a whole to cull out such is the admission or not from non-testing by cross-examination of said sentence-vide- Shri Ravinder Kumar Sharma v. RFA 757/2002 16 State of Assam, 1999 SAR(Civil) 837. 14(f)(v). Thus, in appreciation of evidence, Judges are bound to call into aid their experience and knowledge of human affairs, depending upon facts and circumstances of each case and regard had to the credibility of the witness, probative value of the documents, lapse of time if any in proof of the events and occurrence for drawing inferences, from consistency to the material on record to draw wherever required the necessary inferences and conclusions from the broad probabilities and preponderances from the overall view of entire case to judge as to any fact is proved or not proved or disproved. 14(g). 14(g). Coming to the proof of facts out of the facts in issue to the extent of relevant facts concerned, it depends upon the nature of the lis and in civil matters proof is always by preponderance of probabilities. In RVEE Gounder v. RVS Temple 2003(8)-Supreme Today-194 at 196 the Apex Court held that, in civil cases the proof is by preponderance of probabilities for including in suits relating to ejectment or declaration of title or for possession; and the onus shifts from initial burden on the plaintiffs if able to establish from preponderance of probabilities for entitlement, on the defendant to rebut the same including with specific claim on their part if any. It is in explaining the earlier propositions of law that, in a suit for ejectment, plaintiff shall win or lose his case only on his own strength principle, since it does not mean the onus of proof is static and always on the plaintiff or it shall never shifts on the defendant even if the plaintiff is able to establish his case from preponderance of the probability as to what is meant by proved, not proved or disproved required for the above expressions with reference to Section 3 of Evidence Act without going into the other components of "may presume, shall presume and conclusive proof", from the very definition, proved and disproved to say not proved is when it is neither proved nor disproved. It requires considering the matters before the Court on any fact for either believes it to exist or does not exist (which is by direct evidence), or considers its existence so probable that a prudent man ought, under the circumstance of a particular case to act upon supposition that it exists or does not exist (which is by circumstantial evidence). At paras-25-29 of the judgment, the Apex Court clearly held that in a suit for ejectment once plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence there of, the burden of proof lies on the plaintiff shall be held to have been discharged so as to prove the plaintiff's title. What is meant by proved, not proved or disproved with reference to Section 3 of the Evidence Act was discussed in detail by the division bench of this Court in N.K. Somani v. Punam Somani, 1998(5) ALD 349 . It is also needful to note the difference between legal burden (as per pleadings) and evidentiary burden-how it shifts during trial under Sections 101-103 of the Evidence Act- vide Vasu v. Syed Yason S Quadri, AIR 1987 AP 139 (FB) that was quoted with approval by the Apex Court in Bharat B & D.M. Co. v. Amin Chand Pyaralal, AIR 1999 SC 1008 and in Hiten P. Dalal v. Bratindranath Benarji, AIR 2001 SC 3897 . 14(h) It is also important to appreciate a fact with reference to the context in which it is stated, rather taking it as conclusive. It is relevant to recollect as part of appreciation of evidence with reference to the pleadings as part of discovering truth, the well laid down expression of the three judge bench of the Apex Court in Mrs. Rukhmabai v. Lala Laxminarayana, AIR 1960 SC 335 at para-19 by relying upon the Privy council's expression Alluri Venkatapathi Raju v. Danthuluri Venkata Narasimha Raju, AIR 1936 PC 264 that, it sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and there it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue. 14(i) Court is not confined merely to look into the form of the transaction between the parties concerned; the well laid down expression of the Apex Court in Provident Investment Company Limited v. Court of I.T. AIR 1954 Bombay 95 at para-3 speaks in this regard that, Court is not confined merely to look into the form of the transaction between the parties (in giving effect to the legal rights and obligations there under), but the true legal position that arises out of it (by ignoring the form to ascertain real nature) in which the transaction was embodied and for that the Court may even look at the surrounding circumstances in construing the fact covered by oral statement or document, with reference to the substance and subject to the limitations for admissibility of oral over documentary evidence under Sections 91 and 92 of the Evidence Act. 14(j) Coming to appreciation of evidence in special reference to appeals and in moulding or grant of reliefs; it was held by the Apex Court in Banarsi v. Ramphal, AIR 2003 SC 1989 = 2003(9) SCC 606 and Pannalal v. State of Bombay, AIR 1963 SC 1516 : 1964(1) SCR 980 (5 judges bench) that, 1st appellate Court must re-appreciate (appreciate afresh) the entire evidence in giving its findings supported by reasons as to decide the lis and therefrom to find how far the decision of the trial court on any of its findings and conclusions are correct or incorrect, including for confirmation or reversal of said findings of the trial Court and the appellate Court for that is conferred with powers of wide amplitude under Order XLI Rules 22, 24 and 33 so as to do complete justice between the parties and such power is unfettered to make whatever order it thinks fit, even between corespondents, for ordinarily cross-objections between co-respondents they do not prefer. It is also as per Santhosh Hazari v. Purushottam Tiwari, AIR-2001-SC-965 Madan Lal v. Yoga Bai, (2003(5)-SCC-89) and Harihar Prasad Singh v. Balmiki Prasad Singh, 1975(1) SCC 212 , that in Civil appeals, particularly in first appeal, the appreciation of evidence is at large like appreciation of evidence in a suit, more particularly from Order XLI, Rules 33 & 24 C.P.C. The appellate court got powers under Order 41 Rules 33 & 24 CPC not only to pass an order or decree that the trial court ought to have passed, but also while sitting in appeal against, irrespective of the appeal filed is challenging even part of the order or decree of the trial court, to grant any further decree or order within the scope of relief, though not beyond, as the case may require within the facts and circumstances, which include subsequent events to take note of in so moulding the reliefs-Vide- S. Nasser Ahmed (supra). In P.V. Karuppanan v. Pandari Sundara Raja Ayyar, AIR 1940 Madras 71 it was held that even suit is filed for declaration of title and possession and plaintiff entitled to possession from anterior possession, the relief can be granted even no plea specifically asking for the relief. 14(k). In P.V. Karuppanan v. Pandari Sundara Raja Ayyar, AIR 1940 Madras 71 it was held that even suit is filed for declaration of title and possession and plaintiff entitled to possession from anterior possession, the relief can be granted even no plea specifically asking for the relief. 14(k). Burden of appellant/cross-objector concerned; no doubt, the burden of showing that the judgment or even a finding therein under a challenge in appeal is wrong or incorrect either wholly or in part lies on the appellant and same is also the proposition in the course of the cross-objections as the cross-objectors are at par with appellants so far as their contentions in the cross-objections concerned, in the course of the cross-objections in shifting the burden on them, from hearing the main appeal. Coming to the powers of the 1st appellate Court in this regard concerned, more particularly from Order XLI, Rules 33 and 24 C.P.C. and from several expressions of the Apex Court including - Koksingh v. Deokabai, AIR 1976 SC 634 ; Gaisi Ram v. Ramji Lal, AIR 1969 SC 1144 and Madan Lal (supra); the 1stappellate court is competent to grant relief if finds appropriate on any facts though that was not granted by the trial Court in rendering complete justice and prevent to the extent possible scope for further litigation and to give finality to the lis. But as held in Banarsi and Pannalal (supra) there are three limitations on the said power-Viz., it must not be to the prejudice of persons not parties (Rule 24), if given up a claim not to revive on its own and if part of the lis in the claim for relief not appealed (by cross objections or otherwise) and made final, Court cannot grant relief on the un-appealed portion and the relief to be granted may be lesser to the plea, but not higher or totally outside the pleadings and evidence AIR 1953 SC 235 . Among the defendants to the suit, generally they won't prefer appeal and it is not a bar to decide their claims interse in spite of non-filing of appeal or cross-objections with any specific plea. Among the defendants to the suit, generally they won't prefer appeal and it is not a bar to decide their claims interse in spite of non-filing of appeal or cross-objections with any specific plea. For granting such reliefs it is within the power of the appellate Court, subject to the rider that but for permitting on one ground or other to substantiate the relief granted by trial court, it cannot grant more relief than what was granted by the trial Court for want of cross-objections-vide decisions: Ranjana Prakash v. Divisional Manager, 2011(8) Scale 240 where categorically held that but for to substantiate the quantum on one ground or other from impugning any findings in that regard or by interference by this Court within its appellate power under Order XLI Rule 33 CPC, the respondent to the appeal cannot ask for reducing or increasing the quantum in the absence of cross-objections or independent appeal; Oriental Insurance Company Limited v. R. Swaminathan 2006 ACJ 1398 following the earlier expression of the Apex Court in Banarsi (supra) in the same line; in Banarsi (supra) referring to Pannalal (supra), Rameshwar Prasad v. Shambeharilal Jagannad (three judge Bench), 1964 (3) SCR 549 Harihar Prasad Singh v. Balmiki Prasad Singh, 1975(1) SCC 212 holding that normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him even under Order XLI Rule 33 CPC. But there are well recognized exceptions to this Rule. One is where as a result of interference in favour of the appellant; it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is, where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible, but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is possibility that there might come into operation at the same time and with reference to the same subject matter two decrees which are inconsistent and contradictory. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is possibility that there might come into operation at the same time and with reference to the same subject matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which Courts would interfere under Order XLI Rule 33 of CPC. Such an enumeration neither possible nor even desirable. In Nirmalabalaghosh v. Balaichandghosh (three judge Bench), 1965(3) SCR 550 it was held that Order XLI Rule 33 is undoubtedly expressed in terms which are wide but it has to be applied with discretion, and to cases where interference in favour of appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. ---The Rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from----by failure of the respondent to prefer appeal or to take cross-objections, the respondent has allowed the part of the trial Court's decree to achieve a finality which was adverse to him. While dismissing the appeal, modifying the decree in favour of the appeal-respondent in the absence of cross-appeal or cross-objections is interference by the appellate Court that has reduced the appellant's to a situation worse than in what they would have been if they had not been appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of the law committed by the lower Court(appellate) - in laying down the principle therefrom in Banarsi (supra) that in an appeal filed by the defendant laying challenge to the grant of a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an appeal on his own or had not taken any cross-objection and as such held by relying on it in R.Swaminathan (supra) that in the appeal filed by the insurer the claimant neither filed cross-objections nor appealed independently and thereby not entitled to claim more than what the tribunal awarded. It is needless to say the 1stappellate Court if desires to reverse the judgment and decree of lower Court; it should discuss the findings and set aside those which are unsustainable either on fact or on law." 15. Coming to the law on proof of documents and contents vis-à-vis interpretation and construction of deeds & documents-in particular testamentary, proof of due execution, attestation and contents, relevancy and admissibility-including for collateral purposes, probative value and presumptions: Interpretation is in fact a matter of communication of what wants to know and understand from what is said, in giving the meaning to the words of the document from mind of the person who has executed/written it, by reading of the document as a whole and not from nomenclature or pick and choose sentences-see also State of Orissa v. Titaghur Paper Mills Ltd., AIR 1985 SC 1293 . Interpretation is ascertaining the meaning and Construction is ascertaining the spirit. 15(a)(i). Coming to the proof: Once a document is properly admitted, the contents of those documents are also admitted in evidence, though those contents may not be treated as conclusive evidence-vide P.C. Purushothama Reddiar v. Perumal, AIR 1972 608. It is the settled law that the question of mode of proof is a question of procedure and is capable of being waived. It is to say when original not produced but copy of it for no objection raised after admissibility, the objection cannot later be raised being deemed waived; whereas proof of contents of the document is being substantive, the non-raising of objection is not a waiver vide R.V.E. Venkatachala Gounder v. A.V. & V.P. Temple, AIR 2003 SC 4548 : 8 SCC 752. Following the above, it was also held in Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082 : 7 SCC 107 that ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." Further, like an inadmissible evidence oral or documentary by consent cannot be made admissible by mere consent or no-objection while marking; what is not relevant under the Evidence Act, cannot in proceedings to which the Evidence Act applies, be made relevant by consent of parties. Thus, only admissible and relevant evidence can be brought on the record for consideration of the court without following the regular mode if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it had been brought before the court has sufficiently proved it. Where, therefore, a party not only raised no objection to certain evidence being brought on record but indeed appeared to have invited the adjudicating authority to act on such evidence, it cannot be allowed later on to object to such evidence having been considered by such authority merely because the decision has gone against it-vide-Kalyan Peoples' Co-operative Bank Ltd. v. Dulhanbibi, AIR 1966 SC 1072 . Whereas in the case of Will unless it is proved of due execution by attestation as part of execution contemplated by Section 63 of the Indian Succession Act, of the requirement of testator must sign the Will in the presence of attestors or should personally acknowledge his signature in the presence of attestors, a Will is inadmissible and mere marking is not enough to admit even no objection raised vide Dr. M. Ratna v. Kottiboyina Navaneetham, AIR 1994 AP 96 . It is also held that without the statutory requirements of due execution of Will, it cannot be admitted vide Yumnum O.T.I. Devi v. Yumnum J.K. Singh, 2009 (4) SCC 780 . 15(a)(ii). Nature of Documents: Documents may contain either unilateral or bilateral dispositions or even with reciprocal. Further, testamentary or non-testamentary. Further, transfer of rights or division and separation of existing or joint rights. 15(a)(ii). Nature of Documents: Documents may contain either unilateral or bilateral dispositions or even with reciprocal. Further, testamentary or non-testamentary. Further, transfer of rights or division and separation of existing or joint rights. Further, any dispositions, transfer of rights or creating rights may be either present or future. Furthermore, it affects the rights of even non parties to the documents at times like in boundary recitals. 15(a)(iii). Construction of Documents/instruments: Generally in construing instruments, Court must have regard not only to the presumed intention of the parties but also to the meaning of the words which they have used-vide- V.S. Talwar v. Premchandra, AIR 1984 SC 664 at para-7. 15(a)(iv). Interpretation of Documents: Every instrument has to be so interpreted as to accord with the intention of its maker having regard to the language used; though one cannot ignore actual words used and go after the supposed intention of maker, since that would amount to entering the arena of speculation, but all the same said principle is unexceptionable-vide-Hind Plastics v. Collector of Customs, (1994) 5 SCC 167 at para-17. 15(a)(v). Coming to the admissibility and relevancy and probative value of recitals of the boundaries etc., in documents: Recital in a document of neighboring land, referring one of its boundary as suit land and it belongs to a particular person, for the person to rely on it, is not legal evidence and the same is not even admissible under Section 32(2) of the Evidence Act-vide in re Daddapaneni Narayanappa, 1910 Indian Cases page-286 (Madras). It was held in Karupaanna Konar v. Rangaswami Konar, AIR 1928 Madras 105(2) at page-106 that, a mere statement of boundary cannot be classed with any of the verbs in Section 13 of the Evidence Act of created, modified, recognised, asserted or denied and is therefore not admissible; the same is not even admissible under Section 32(3) of the Evidence Act as it is a statement and not the document containing the statement that must be against the proprietary interest of the person making it. It was held further that the lower court influenced by the idea of the document is an ancient one and the recitals obviously not intentionally false and are therefore presumably true; having overlooked the fact that parties making statements which are not material to their interests have no occasion to be accurate. It was held further that the lower court influenced by the idea of the document is an ancient one and the recitals obviously not intentionally false and are therefore presumably true; having overlooked the fact that parties making statements which are not material to their interests have no occasion to be accurate. In Ramacharandas v. Girijachanddevi, AIR 1966 SC 323 it was held that the recitals in a document would operate as an estoppel against the author of the document. The only restriction in this regard is that, an estoppel is confined to the transaction covered by the document and the recital cannot be treated as an estoppel in a collateral transaction. Even this principle has several ramifications- For Example: if the deed is fairly old, the recitals cannot be altogether discarded and such recitals gain sufficient weight with the passage of time even as regards collateral transactions. This however depends upon the facts and circumstances of each case. An important area of interpretation of documents is the realm of the nature of the document. Ascertainment of nature of document including from the contents and attending circumstances, intention of the executant (unilateral) and parties to it (bilateral) assumes importance as law prescribes different patterns and procedures for different types of transactions covered by the documents and its execution and proof. It was laid down in Rangayyan v. Inasimutthu AIR 1956-Madras-226 that, recitals of the boundaries in a document inter-parties is admissible as a joint statement of the parties executed it to act as admission, where as recitals of a document between a party and stranger is relevant against the party as an admission but is not admissible in his favour unless the fact recited is deposed by executants of the document in Court to act as a corroborative evidence under Section 157 of the Evidence Act or to contradict under Sections 145 & 155(3) of the Evidence Act; whereas recitals as to boundaries in the document between third parties, it is not ordinarily admissible to prove possession or title as against a person, who is not party to the document, but for at best to corroborate or to contract. The probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from "0" to clinching evidence as the case may be from material on record of the respective cases-See also Umarapartvathy Vs. Bhagvathy Amma, AIR 1972 Madras 151. 15(a)(vi). Documents executed ante-(pre-liti), pendenti and post-litem motam: In Harihar Prasad Singh v. Deonarayan Prasad, AIR 1956 SC 305 it was held in para-5 that recitals in the documents executed ante(pre-liti) litem motam and inter parties held of considerable importance and their probative value as against them is high from the recital of private lands of the proprietor (which includes de facto/dejure) in assertion of their title and for its admissibility under Section 13 of the Indian Evidence Act. It was however, observed that the respondents are right in contending that the recitals cannot be considered as admissions by the mortgagees as they were executed by the mortgagors. It is also held in Rangayyan v. Inasimutthu (supra) that depending upon the recitals in the documents executed ante-pre, pendenti and post-litem motam and from nature of recitals and other circumstances of between inter parties or third parties; the probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from "0" to clinching evidence as the case may be from material on record of the respective cases. In Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 it was held that-it is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy. 15(a)(vii). Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy. 15(a)(vii). Presumption of thirty years old document: In Harihar Prasad Singh(supra)-it was also held by placing reliance upon the expression in Basanth Singh v. Brijraj Sadan Singh, AIR 1935 PC 132 (c) regarding presumption of thirty years old document under Section 90 of the Indian Evidence Act that, a presumption can be raised only with reference to original document and not to copies thereof. If the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 does not authorize the raising of a presumption as to the existence of authority on the part of the agent to represent that person. In Union of India v. Ibrahim Uddin, 2012(6) SCJ 432 Civil Appeal No. 1374/2008, dt.17-07-2012- it was held regarding presumption of thirty years old document under Section 90 of the Indian Evidence Act, that the presumption is in respect of genuineness of a document as regards signature, execution and attestation, but not as regards the correctness of the contents of the document. In T. Ramesh v. Lakshmamma, 1999 (2) ALT 553 , it was held referring to H. Venkatachala v. B.M. Thimmajamma, AIR 1959 SC 443 and Dhanapala v. Govindaraju, AIR 1961 Madras 262 and extracts from Tailor's Law of Evidence & Halsbury's Law of England that, law recognizes a conclusive presumption in favour of due execution of insured deeds and Wills when those instruments are 30 years old and are unblemished by any alterations and are produced from natural custody, they are said to be proved themselves. A bare production is sufficient and the scribe and witnesses being presumed to be dead and in the absence of circumstances of suspicion to have been duly sealed, attested, delivered or published according to their purport, when those are above 30 years produced from proper custody in saying that those are by production said to be proved themselves. The proper custody is in the custody of a person, who might be reasonably and naturally be expected to have possession of them. The proper custody is in the custody of a person, who might be reasonably and naturally be expected to have possession of them. It would be dangerous no doubt for the courts to draw presumption of due execution mechanically on the face of the documents purporting to be 30 years old; and coming from proper custody in as much as the presumption dispense with proof of due execution, thereby the Court must act with extreme caution and utmost circumspection from the language used "May presume" in Section 90 of the Evidence Act conferring judicial discretion to be exercised by the Court in drawing the presumption. It is within the judicial discretion of the Court having regard to facts and circumstances of each case. See also Ch. Adiseshamma v. Rama Rao, AIR 1973 AP 149 . 15(a)(viii). Attestation of a document is when to attribute knowledge of its contents: In Pandrang Krishnaji v. N. Tukaram, AIR 1922 PC 20 it was held on how far mere attestation of a document is to attribute knowledge of its contents and whether to say he attested with knowledge and consented to the transfer, that the attestation of a deed by itself estops a man from denying nothing whatsoever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document and it ought not to be put to word alone for the purpose of establishing that a man consented to the transaction which the document effects. Mere attestation does not affect as an estoppel, for attestation does not fix the attesting witness with knowledge of contents of the document or implying consent for the contents of the document, unless it is established by the independent evidence that to the signature was attached the express condition that it was intended to convey something more than mere witnessing to the execution and was meant as involving consent to the transaction - vide Rajyammmal v. Sabhapathi, AIR 1945 PC 82 & Pandrang (supra). 15(a)(ix). 15(a)(ix). Attestation of a document and mode of proof: Section 3 of the Transfer of Property Act, defines attestation in relation to an instrument (to mean non-testamentary-though same analogy applies to testamentary with reference to Section 63 of the Indian Succession Act), means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a person acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. As per the Apex Court's expression in Abdul Jabbar v. Venkata Shastry, AIR 1969 SC 1147 to attest is to bear witness to a fact. The essential conditions of a valid attestation are that two or more witnesses have seen the executant sign or affix his mark to the instrument, or have seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executants a person acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executants to bear the witness to this fact, it is essential that the attesting witness has put his signature animus attestandi that is for the purpose of attesting the signature of the executant. See the discussion supra of mere attestation is not suffice to attribute knowledge of contents. 15(a)(x). As per Section 68 among Sections 68 to 71 of the Indian Evidence Act, regarding of the proof of an attested instrument (other than Will), it is unnecessary to call any attesting witness in the case of compulsory attestable deed, unless execution of the deed is specifically denied by the person by whom it purports to have been executed. If the execution is specifically denied one attesting witness must be called upon to prove the deed-if there be one alive and subject to the process of the Court. If the execution is specifically denied one attesting witness must be called upon to prove the deed-if there be one alive and subject to the process of the Court. If the attesting witnesses are dead their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/handwriting/thumb impression as the case may be (under Sections 47 & 67 and or Sections 45 r/w.51 and or Section 73 of the Evidence Act). 15(a)(xi). A composite document which is severable and in part clearly testamentary, such part may take effect as a Will and other part if it has the characteristics of a settlement and that part will take effect in that way. A document which operates to dispose of properly in praesenti in respect of few items of the properties is a settlement and in future in respect of few other items after the deeds of the executants, it is a testamentary disposition. That one part of the document has effect during the life time of the executant i.e. the gift and the other part disposing the property after the death of the executant is a Will and in such case stamp and registration are compulsory-vide Rev. Fr. M.S. Poulose v. Varghese and others, (1995) Supp 2 SCC 294. 15(b)(i). In the interpretation of Wills in India, regard must be had mainly to the rules of law and construction contained in Part VI of the Indian Succession Act and particularly Section 88 of the Indian Succession Act and not the rules of the Interpretation of Statutes-vide - Mathai Samuel v. Eapen Eapen (dead) by Lrs., 2013(1) ALT (1 ) (SC). 15(b)(ii). In Narendra Gopal v. Rajat Vidhyardhi, (2009) 3 SCC 287 at para-32(cl.3) it was held that, in appreciating the documents of unilateral dispositions and testamentary dispositions like Wills, the true intention of the testator (executant) has to be gathered, not by attaching importance to isolated expressions but by reading the document as a whole. 15(b)(iii). The nomenclature given by the parties to the transaction in question is not decisive, but the contents and the intention of the executant, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. 15(b)(iii). The nomenclature given by the parties to the transaction in question is not decisive, but the contents and the intention of the executant, which must be found in the words used in the document. The question is not what may be supposed to have been intended, but what has been said. One need to carry on the exercise of construction or interpretation of the document only if the document is ambiguous, or its meaning is uncertain. The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift/settlement is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the beneficiaries or it intended to transfer interest in favour of the beneficiaries only on the death of the executant. 15(b)(iv). "Will" as defined in Section 2(h) of the Indian Succession Act- means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death". 'Will' is derived from the Latin word "Voluntas" to mean expression of intention of a testator generally in a document. 'Testament' is derived from the Latin word "Testatio-mentis" to mean testifies the determination of the mind. Thus, it is a legal declaration of a person's intention to take effect after death of that person. According to Schoulder's - law of Wills, a Will is the aggregate of man's testamentary intention so far as the same is manifested in writing and duly executed according to the Statutes. 15(b)(v). Lord Wilmot, C.J. in Doe Long v. Laming (2 Burr. at pp.11-12) described the intention of the testator as the "pole star" and is also described as the "nectar-of the instrument". 15(b)(vi). Underhill & Strahan on interpretation of Wills and Settlements-(1900 Edn.), while construing a Will stated that "the intention to be sought is the intention which is expressed in the instrument not the intention which the maker of the instrument may have had in his mind. It is unquestionable that the object of all expositions of written Instruments must be to ascertain the expressed meaning or intention of the writer; the expressed meaning being equivalent to the intention......" 15(b)(vii). It is unquestionable that the object of all expositions of written Instruments must be to ascertain the expressed meaning or intention of the writer; the expressed meaning being equivalent to the intention......" 15(b)(vii). In Halsbury's Laws of England, 4th Edn., Vol.50, P.239, it is stated: "408.The only principle of construction which is applicable without qualification to all Wills and overrides every other rule construction, is that the testator's intention is collected from a connection with any evidence properly admissible and tile meaning of the Will and of every text of it is determined according to that intention." 15(b)(viii). 'Will' therefore has the four essentialities- (i) It must be a legal declaration of testator's intention, (ii) That declaration must be with respect to his property, (iii) The desire of the testator that the declaration should be effected after death of testator and (iv) The other Essential quality of testamentary disposition is ambulatoriness of revocability during executants' lifetime. Such a document is dependent upon executants' death for its vigour and effect. A Will need not be stamped under the Indian stamp Act and need not be necessarily registered being optional under Section 18 of the Indian Registration Act. It is different to Gift or Settlement or other disposition by transfer of rights in immovable property worth above Rs. 100/- which necessarily be registered under Section 17 of the Indian Registration Act, besides duly stamped, though when stamped or impounded and even unregistered can be admitted for collateral purpose under Section 49 of the Indian Registration Act. So far as Will concerned when it its required to be proved as contemplated by Sections 68-71 Indian Evidence Act and Section 63 Indian Succession Act, till then it cannot be used even for collateral purpose (for the reasons stated with reference to the existing law of the land in the earlier paras). In Paranru Radhakrishnan v. Bharathan, AIR 1990 Kerala 146 it was held that the imperative and clear straight wording of Section 68 Evidence Act makes it clear that it does not permit the use of a document which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the Section. 15(b)(ix). 15(b)(ix). Though registration is optional and not compulsory and non registration is by itself not a ground to doubt, registration is one of the positive circumstances to infer in favour of due execution, unless evidence on record shows otherwise. Registration of Will being optional, mere registration does not dispense with the proof of execution and attestation, but for to serve only a piece of evidence of the execution. That It is also of the reason that Will operates after the death of the testator and in his life time he can alter or cancel the bequeaths by codicil or fresh Will any number of times as facts and circumstances shown permitted and thereby also the last disposition prevails over the earlier even in same document for same property in case of inconsistent bequeaths. In Shivdev Kour v. R.S. Grewal, 2013 (3) ALT 1 (SC) para-12 & in Balwant Kour v. Chanan Singh, AIR 2000 SC 1908 it was held that all the clauses of the Will must be read together to find out the intention of the testator. This is obviously on the principle that the last clause represents the latest intention of the testator (See also Section 88 of the Indian Succession Act). 15(b)(x). Will as can be said speaks from the grave of the testator as executant of the Will cannot be called upon to admit or deny execution, much less to explain any circumstances surrounding the execution and testamentary capacity and condition with reference to sound and disposing state of mind and thus for appreciating the evidence of due execution and genuineness of bequeaths, the court Will put itself in to the armchair of the executant/testator. The intention of the testator in this regard must be ascertained not only from the words used, but also from surrounding circumstances with reference to the unimpeachable evidence regarding genuineness and authenticity as well as probabilities and improbabilities and unnatural or unfair bequeaths with reference to the direct or indirect beneficiaries of the bequeaths in the Will/testament known as pronouncer/s influence and role as to not a free Will and volition of the testator in making the bequeaths and reasons or circumstances in relation to natural heirs and their relation with the testator for ignoring and making bequeaths to other than natural heirs or preferring among the natural heirs or preferring other than natural heirs also as the legates. If in relation to the above or otherwise, there are any suspicious circumstances or cloud shrouded around the execution and in the bequeaths, the propounder has to discharge of the burden lies on him to prove and dispel the suspicious circumstances to clear the cloud and probablises the genuineness of execution and the bequeaths as per free will and volition of testator as mere ignoring the natural heirs or preferring among them or preferring other than natural heirs also by itself not a ground to doubt genuineness for the reason that the testamentary dispositions by Will itself is to interfere or alter or divert the natural line and of flow from the intestate succession and survivorship by reducing or depriving the share of natural heirs if any at the discretion and Will of the testator. Apart from it, it is it is absolutely necessary of execution of the Will under Section 63 of the Indian Succession Act to prove that the Will was attested by the two attesting witnesses at least who saw the testator sign the Will or the testator must personally acknowledge the signature on the Will that of him in the presence of the two attesting witnesses and they themselves signed the same in the presence of the testator. Without attestation, execution of the deed of Will is not valid. When no witness deposed of the alleged Will was signed by the deceased in his presence or that he had attested the document, execution of the very Will can be held as not proved. A reading of even Section 68 of the Evidence Act shows that attestation and execution are the two different acts one following the other. Where the Will is registered and there are signatures of registering officer and of identifying witnesses affixed to registration endorsement, endorsement by sub-registrar that executant has acknowledged execution before him amounts to attestation and when all they deposed the same of due execution and attestation, it is a compliance of Section 63 Indian Succession Act. Where the Will is registered and there are signatures of registering officer and of identifying witnesses affixed to registration endorsement, endorsement by sub-registrar that executant has acknowledged execution before him amounts to attestation and when all they deposed the same of due execution and attestation, it is a compliance of Section 63 Indian Succession Act. It is for the Court to appreciate from the above, including intention of the testator with reference to contents, other attending facts and surrounding circumstances like considerations in making bequeaths instead of allowing the estate by intestacy to claim legal heirs equally, motive of the testator in the recitals even by making dispositions to the natural heirs who otherwise even succeed, propounder influence if any, needless to say propounder of the Will has to dispel with the suspicious circumstances shrouded around the Will and its execution and manner of dispositions, the position of the testator, his family relationship and preference of some among the family members or preference of some other than the family members and among the legal heirs remote to the nearest and other considerations in making bequeaths, propounder influence-(irrespective of not direct beneficiary). There are no set parameters to judge all these aspects but for within these broad guidelines to appreciate the evidence on record of the case on hand within the ordinary and reasonable prudence to arrive at a just conclusion, for each case depends on its own facts- vide decisions in Raghunath Prasad Singh v. Deputy Commissioner, AIR 1929 PC 283 , Mokshada Ranjan v. Surendra Bijos, AIR 1939 Calcutta-40, Dasarath Gayan v. Satyanarayana Ghosh, AIR 1963 Calcutta-325, Lalta Baksh v. Phool Chand, AIR 1945 PC 113 , Kapuari Kuer v. Shamnarain Prasad, AIR 1962 Patna-149, Savitri Ammal v. State AIR 1960 Madras 217, Dr. M. Ratna v. K. Navaneetam, AIR 1994 AP 96 , Ram Gopal v. Nandlal, AIR 1951 SC 139 , Gnanambal Ammal v. T.Raju Iyyer, AIR 1951 SC 103 , Raj Bhajrang Bahadur Singh v. Thakurian Bhaktaraj Kuer, AIR 1953 SC 7 , Girja Dutt v. Gangotri Dutt, AIR 1955 SC 346 , H. Venkatachala Iyangar v. B.N. Timma rajamma, AIR 1959 SC 443 , Kameswara Rao v. B. Surya Prakasa Rao, AIR 1962 AP 178 , Rani Purnima Devi v. Kumar Khagrendra Narayan Deb, AIR 1962 SC 567 , Peareylal v. Rameswar Das, AIR 1963 SC 1703 , The Constitutional Bench expression in Shashi Kumar Benarji v. Shubodh Kumar Benarji, AIR 1964 SC 529 , T.V. Kaur, AIR 1964 SC 1323 , Surendra Pal v. Dr (Smt) Saraswathi Arora, AIR 1974 SC 1999 , Beni Chand v. Kamala Kunwar, AIR 1977 SC 63 , Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 , Brijmohanlal Arora v. Giridharlal Manocha, AIR 1978 SC 1202 , Smt. Indu Balabore v. Manindra Chandra Bose, AIR 1982 SC 133 , Kalyan Singh v. Choti, AIR 1990 SC 396 , Ram Pyari v. Bhagwanh, AIR 1990 SC 1742 , Veerattalingam, AIR 1990 SC 2201 , Kasibhai v. Parwatibai, 1995 (6) SCC 213 , Rabindranath Mukherjee v. Panchanan Benarji, AIR 1995 SC 1684 , PPK Gopalan Nambiar, AIR 1995 SC 1852 , Daulat Ram v. Sodha, AIR 2005 SC 233 , S.Sundaresara pai v. Sumangala T.Pai, AIR 2002 SC 317 , Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 : (1) Supreme 297, Umadevi Nambiar v. T.C. Sridhan, 2004 (2) SCC 321 , Daulat Ram v. Sodha, AIR 2005 SC 233 , Sridevi v. Jayaraja Shetty, AIR 2005 SC 780 , Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362 , Gurdev Kaur v. Kaki, AIR 2006 SC 1975 , Gopal Swaroop v. Krishna Murthy, AIR 2010 (14) SCC 266 , Mathai Samuel (supra). 15(b)(xi). Coming to the proof of WILL (testamentary instrument execution which includes attestation and its proof). 15(b)(xi). Coming to the proof of WILL (testamentary instrument execution which includes attestation and its proof). Apart from the other expressions supra, the Constitutional Bench expression in Shashi Kumar Benarji(supra) held at page-531, para-3 that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925, which says the testator shall sign or affix his or her mark to the Will or it shall be signed by some other person in the presence and by his direction and the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his or her mark to the Will or as seen some other person signed the Will in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator and Section 68 of the Indian Evidence Act mandates in the case of denial or not of execution, examination of one attesting witness atleast in proof of the Will whether registered or not. In the absence of suspicious circumstances, it is suffice to prove testamentary capacity and due execution with attestation and where there are suspicious circumstances, the onus is heavy on the propounder to dispel the same for the court acceptance as genuine and last Will and testament. Attestation of a Will means testifying the signature of the executant. It is equally important that for a Will to be valid and enforceable shall be attested by two or more witnesses, each of whom has seen testator sign or affix his mark to the Will or the testator should personally acknowledge his signature or affixture of his mark to the Will in the presence of the attestors and without that acknowledgement, it cannot be inferred and further each of the witnesses has signed said Will in presence of testator and said provision is not a mere formality, but mandatory. Proof of attestation of the Will is also mandatory - Dr. M.Ratna v. Kottaboina Navaneetham, AIR 1994 AP 96 , Yumnam O.T.I. Devi (supra) & A. Poline D'Souza v. John D'Souza, 2007 (7) SCC 225 . Proof of attestation of the Will is also mandatory - Dr. M.Ratna v. Kottaboina Navaneetham, AIR 1994 AP 96 , Yumnam O.T.I. Devi (supra) & A. Poline D'Souza v. John D'Souza, 2007 (7) SCC 225 . However, Court cannot disregard evidence of attending circumstances on record if those must satisfy itself as to compliance on the totality, like giving evidence by one attesting witness and there is no dispute about presence of other attesting witness at the time of execution of the Will from the other contesting party from the other attestor's name finds place in the Will even the witness examined did not speak by mere non-recollection of said fact from lapse of time to the date of evidence from date of document and its execution vide decision M.B. Ramesh v. K.M. Veerajeurs, 2013(7) SCC 490 . Such circumstances are in fact rare and as such, the attesting witness examined otherwise must also speak the presence and attestation of other witness also as part of proof. Thus, in view of Section 63(1)(c) of the Indian Succession Act r/w Sections 68 & 71 of the Indian Evidence Act, it is sufficient even one attestor is examined, but that attestor should speak not only about the testator's signature or affixing his mark to the Will or somebody else signing it in his presence and by his direction or that he had attested the Will after taking acknowledgement from the testator of the signature or mark, but he must also should speak that each of the witnesses had signed the Will in the presence of the testator. It is irrespective of non-denial of its execution, one attesting witness at least as a concession out of minimum two persons to attest as required, must be called upon to prove the deed, if there be even one alive and subject to the process of the Court. But what is significant is that said attesting witness examined must be able to speak to the attestation by the other attestor also. Section 71 Evidence Act has no application if the attesting witness only one examined (of the two or more attestors) has failed to prove the execution of the Will and the other attesting witness/s even available not summoned and examined. Section 71 Evidence Act has no application if the attesting witness only one examined (of the two or more attestors) has failed to prove the execution of the Will and the other attesting witness/s even available not summoned and examined. It is clear from the language of Section 71 Evidence Act, that if an attesting witness examined denies or does not recollect execution of the document, its execution, may be proved by other evidence(under Sections 47 & 67 and or Sections 45r/w.51 and or Section73 of the Evidence Act). Sections 71 when cannot be resorted to from said one attesting witness fails to prove the will and the other attesting witness if alive and available without his examination to prove by other evidence, it cannot be said the execution is proved as per law as Section 71 of the Evidence Act is only a permissive provision and enabling section to permit a party to lead other evidence only in certain circumstances-which are the above as it is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and such impossibility cannot be let down without any other means of proving due execution by other evidence as well. Section 68 of the Evidence Act is not merely an enabling section as it lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Thus, Section 71 of the Evidence Act cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act - to liberally allow him, at his choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to the proof of execution of a Will. Where the attesting witness called upon to prove execution, is not in a position to prove the attestation of the Will by second witness, the evidence of the witness falls short of the mandatory requirements of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act and Section 71 of the Evidence Act can only be invoked in such case and proved no other attesting witness available including by attempt to summon for securing- See - Janaki Narayan Bhogir(supra), Karri Nukaraju v. Putra Venkatrao, AIR 1974 AP 13 & Babu Singh v. Ram Shahiaram singh, 2008(14) SCC 754. Further, Section 69 of the Evidence Act, applies in the absence of attesting witness and only when party moves the Court for summons under Order 16 Rule 10 CPC and the witness fails to obey the summons to prove the Will in the manner prescribed by Section 68 of the Evidence Act - vide Babu Singh (supra). If the attesting witnesses are dead their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/handwriting/thumb impression as the case may be (under Section 47 & 67 and or Section 45 r/w.51 and or Section 73 of the Indian Evidence Act. No doubt, it was held by the division bench of our high Court in Alluri JS Lakshmi v. Kopparthi R Rao, 1994 (1) ALT 217(DB) that execution of Will need not be proved when it is admitted by other side and when contest is only on legal aspects as to validity of bequeathing certain properties covered by the will. For that conclusion mainly relied upon Section 58 of the Evidence Act. In fact, without attestation when execution is not complete and without proof of execution by attestation, the disputed contents of it cannot be looked into as also laid down by the Apex Court in catena of expressions supra. Besides that, in the case on hand there is no admission of execution and attestation and also contents since all are denied and disputed. It is laid down even by the later expression of the Apex Court that without attestation, execution of the Will is not valid-vide decision Kahibai v. Parwatibai, 1995 (6) SCC 213 . Besides that, in the case on hand there is no admission of execution and attestation and also contents since all are denied and disputed. It is laid down even by the later expression of the Apex Court that without attestation, execution of the Will is not valid-vide decision Kahibai v. Parwatibai, 1995 (6) SCC 213 . Where genuineness of the Will is questioned, it is the duty to prove the Will is the product of free mind of the testator and it is the duty of the propounder to dispel the surrounding suspicious circumstances, if any - vide decisions in Savithri v. Karthyayani Amma, (2007) 11 SCC 621 ; Gopala Krishna Pillai v. Meenakshi Ayel, AIR 1967 SC 155 , Venkatachala Iyangar and other decisions referred in the previous paras (supra). 15(c). Coming to controversy as to in the absence of proof of due execution and attestation, some of the contents of the document if not in dispute whether can be looked for collateral purpose; the law in this regard culled out to settle the controversy is the following: 15(c)(i). Regarding the written authority by husband to wife to adopt a child by her after his life time under uncodified Hindu law, it was observed in Para 453 of Mulla of page 780 that the authority must be in writing and registered, unless it is given under a Will vide decision Mottasiddilal V. Kundanlal 1906 (28) All. 377 and Ravath V. Beni Bahadur AIR 1926 PC 1927 and if the authority is given under a Will, it must be executed in accordance with the formalities required by Section 63 of the Indian Succession Act. It is to say collateral purpose is not recognised or considered in the above. 15(c)(ii). In Shib Chandra v. Gour Chandra Paul, AIR 1922 Calcutta 160 - it was at Page 162, referring to Section 68 of the Indian Evidence Act, on admissibility for a collateral purpose or not of a compulsory attestable document even denied execution and attestation, not proved under Section 68 of the Evidence Act, it was held that Section 68 of the Evidence Act applies not only to cases where document is admitted to be enforced to prove the legal right or relation it creates, but in case where such document is sought to be proved for a collateral purpose. The view is also supported by the impetrative wording of Section 68, which does not permit the admissibility of the instrument as evidence for any purpose, what so ever unless and until, it is proved in strict compliance with the provisions of the Section. The rigor of the English Law, on which the present Section is founded, has been to a certain extent lessened by the proviso as contained in Section 70 of the Evidence Act. The enactment of this proviso clearly indicates that the Indian legislature intended to provide only one exception to this inflexible rule and no other. Later also in Awadhu Ram v. Mahbub Khan AIR 1924 Oudh 255, the division bench of the Oudh High Court held at page 259 referring to Section 68 of the Evidence Act that, there is no distinction between documents which are the basis of a suit and those whose production is required for a collateral purpose, so far as their admissibility in evidence is in question. The direction in Section 68 of the Evidence Act is mandatory and draws no such distinction. In Pt. Shyam Lal v. Lakshmi Narain and others, AIR 1939 All 269 (DB), it was held by the Allahabad High Court that Section 68 of the Evidence Act does not apply to a document, which is merely to be proved for admission of contentions in it. Further in Mahadio Prasad v. Gulam Mohd, AIR 1947 Alahabad 161 (DB) referring to Section 68 of the Evidence Act, it was held by the division bench of the Allahabad High Court that Section 68, applies only if document is relied upon as requiring attestation-for example a Will. Non-compliance with the provisions of Section 68 of the Evidence Act, however, does not prevent the document from being used in evidence under Section 72 for any other or collateral purpose and to that conclusion they placed reliance upon the earlier expressions of the Allahabad High Court of 1915, 1918 and Pt. Shyam Lal(supra) of 1939, in saying use of the document for collateral purpose is not a bar, from the bar under Section 68 of the Evidence Act; as Section 68applies only if a document is relied upon as one requiring attestation to comply. Shyam Lal(supra) of 1939, in saying use of the document for collateral purpose is not a bar, from the bar under Section 68 of the Evidence Act; as Section 68applies only if a document is relied upon as one requiring attestation to comply. However, in the later judgment reported in Paranru Radhakrishnan v. Bharathan, AIR 1990 Kerala 146, by referring Section 68 and 69 of the Evidence Act and also referring to the above expressions of the Calcutta, Ough and Allahabad High Courts, the Kerala High Court held that from reading of Section 68 of the Evidence Act, it is evident that a document which is required by law to be attested, shall not be used at all as evidence, until one of the attesting witnesses at least has been examined to prove its execution. The imperative wording of Section 68 of the Evidence Act makes it clear that it does not permit the utilisation of a document, which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the Section. From a reading of Section 68 of the Evidence Act and its proviso, it is not possible to hold that the rigor of the section can be watered down in case of a Will, which is required by law be attested to prove it to use the same in evidence even for collateral purposes. Thus, where the production of Will was for the purpose of establishing right in the property and not relationship between the parties and the testator, strict compliance of Section 68 of the Evidence Act is mandatory and without adhering to the provisions, it cannot be used even for any collateral purpose. 15(c)(iii). It is in this background, it is important to refer the recommendations of the Law Commission of India, suggesting an amendment to be made to the Indian Evidence Act for various sections covered by 185th report and though at pages 185.179 to 185.183, it was dealt with the above propositions also in suggesting amendment for admissibility to the collateral purpose, without need of proving the due execution and attestation for admissibility to the main purpose. It speaks from the 69th report, among the amendments suggested include amendments to Section 68 of the Evidence Act and under Sections 57, 58 and 63 of the Indian Succession Act and Sections 59 and 123 of the Transfer of Properties Act. The Law Commission 69th report recommendations also stated the opinion of Sarkar, the Author on the Evidence Act that Section 68 of the Evidence Act should not apply, if the Will is more than 30 years old under Section 90 of the Evidence Act or was not produced in spite of notice to produce under the Evidence Act; which proposals are broadly in conformity with the English Law as it stands after the UK Evidence Act, 1938..........which accept even in case of Wills for other situations where witness is kept out of way................ Sarkar on Evidence (15th edition-1999) at page 1124, Wigmour on Evidence at Para 1288, speak that the theory that parties must be deemed to have agreed that the attestor will be a person, who should speak about the circumstances of the execution, is not correct and there is no such agreement can be implied, particularly, when attestation is required by law. As per Sarkar, Page 1124 the attestor is in practice, not usually a person who knows anything about the circumstances preceding the document execution and also on the aspect, the words shall not be 'used in evidence' mean that the document can be used for collateral purposes. Several Jurists in America relaxed the rule for the purpose of collateral or incidental use (Wigmore Section 129 quoted by Sarkar Page 1129) as relaxed the rule in admission of a mortgage bond in, AIR 1939 Allahabad 366, AIR 1915 Allahabad 254. The Law Commission thus proposed that the inadmissibility must be confined to the testamentary disposition and not for collateral purpose and recommended that Section 68 of the Evidence Act must be confined only to Wills and required to be re-drafted and the exceptions added and referred to in the 69th report required. It clearly speaks even from the Law Commission 69th Report, so far as a Will is concerned the admissibility cannot be without examining at least one of the attestors in proof of due execution even to read any of the contents that what practically laid down by the Kerala High Court referring to the earlier expressions of Allahabad, Haryana and Calcutta High Courts. The Apex Court in Kashibai and another v. Parwatibai, 1995 (6) SCC 213 held at paras 10 and 11 that Section 68 of the Indian Evidence Act shows that the attestation and execution are the two different acts one following the other. There can be no valid execution of a document which is required by law to be attested without the proof of its due attestation and if due attestation is also not proved; the fact of execution of the Will is of no avail-See also several expressions referred and discussed in the previous paras supra and in particular of the Karri Nukaraju, Dr. M. Ratna & Janki Narayan Bhoir- with reference to Section 3 of the Transfer of Property Act, Sections 68-71 of the Indian Evidence Act & Section 63 of the Succession Act, with regard to the execution of unprivileged Wills the word attested has been defined as in Section 3 of the Transfer of Property Act. In the case on hand, as found by the trial Court, none of the witness to the Will had deposed that the deceased-attestor had signed the Will before them and that they had attested it and in the absence of such evidence, it is difficult to accept that the execution of the Will was proved in accordance with law, but held that Will has not been proved. In Babu Singh(supra) held referring to Section 68 of the Evidence Act, Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act that to prove due execution of Will, at least one attesting witness required to be examined as attestor must be in conformity with Section 3 of the Transfer of Property Act and with the requirement of Section 63 of the Indian Succession Act, that must be complied with. 15(d). Coming to decide an entry or entries in an account book whether can be admitted to read with relevancy within the meaning of Sections 11 or 32 or 13 or 34 of the Evidence Act concerned, (it is in addition to the meaning and scope of Sections 11 or 32 or 13 or 34 of the Evidence Act referred supra, though in a different context on contents of a will can be read for collateral purpose, even not proved as contemplated by law); the legal position on the subject is the following: "15(d)(i). The Division Bench of Madras High Court in AIRLSVLS Chettiyar v. RSMVR Dorai Singa, AIR 1940 Madras 273 it was held at page 278 that, statement not satisfying the considerations laid down in Section 32 of the Evidence Act cannot be admitted, even under Section 11of the Evidence Act, merely because it may be probablises relevant fact; as Section 11 must be read subject to the other provisions of the Act. It is in saying what is not admissible under Section 32 cannot be admitted under Section 11 of the Evidence Act and Section 11 of the Evidence Act no way helps independently to admit what is not admissible under Section 32 of the Evidence Act. 15(d)(ii). In re Daddapaneni Narayanappa, 1910 Indian Cases page 286 (Madras), it was held that recital in a document of neighboring land, referring one of its boundary as suit land and it belongs to a particular person, for the person to rely on it, is not legal evidence and the same is not even admissible under Section 32(2) of the Evidence Act. The decision while saying neighboring owners document referring boundary recital of suit land not legal evidence to the lis, held therefrom as not even admissible under Section 32(2) of the Evidence Act. It no way says the recital won't come under Section 32(2) of the Evidence Act. 15(d)(iii). It was also held in Karupaanna Konar v. Rangaswami Konar, AIR 1928 Madras 105(2) at page-106 that, a mere statement of boundary cannot be classed with any of the verbs in Section 13 of the Evidence Act of created, modified, recognised, asserted or denied and is therefore not admissible; the same is not even admissible under Section 32(3) of the Evidence Act as it is a statement and not the document containing the statement that must be against the proprietary interest of the person making it. It is to say, if it is the statement in a document it comes within the purview of Section 13 & 32(3) of the Evidence Act. 15(d)(iv). It is to say, if it is the statement in a document it comes within the purview of Section 13 & 32(3) of the Evidence Act. 15(d)(iv). The other decision in Siripalli Venkata Rayagopala Raju v. Hota Narsaiah Madras High Court Volume 26 Indian cases page 747 of the year 1914 D.B., it was held that a document mentioned as sale deed executed by widow of the family asserting the property belongs to their husband were admissible under Section 13(1) of the Evidence Act as transaction so also written statement filed by them in suits which they are parties and in which they had made recitals. Whereas a document in which there is a recital between third persons in describing the boundary of property sold, as the suit property as that of particular family is not admissible under Section 13 of the Evidence Act as a transaction or even under Section 32 of the Evidence Act as an admission against interest. 15(d)(v). In Karpanna Kumar (supra), it was held further in dealing with Section 32 and 13 of the Evidence Act that under Section 32(3), it is the statement and not the document containing the statement which must be against the proprietary person making of interest and under Section 13 of mere statement of boundary cannot be classed with any of the verbs in Section 13 created, modified, recognized, ascertained or denied as is therefore not admissible under Section 13 (a) of the Evidence Act. 15(d)(vi). In fact as laid down by the Madras High Court later to the above in the year, 1956 in Rangayyan v. Inasimutthu (supra), recitals of the boundaries in a document inter-parties is admissible as a joint statement of the parties executed it to act as admission, where as recitals of a document between a party and stranger is relevant against the party as an admission but is not admissible in his favour unless the fact recited is deposed by executants of the document in Court to act as a corroborative evidence under Section 157 of the Evidence Act or to contradict under Sections 145 &155(3) of the Evidence Act; whereas recitals as to boundaries in the document between third parties, it is not ordinarily admissible to prove possession or title as against a person, who is not party to the document, but for at best to corroborate or to contract. The probative value to be attached to such recitals in the documents even admitted in evidence is depending upon the facts and circumstances of each case right from "0" to clinching evidence as the case may be from material on record of the respective cases. 15(d)(vii). The other decision in Jayan v. Jayala Laxman, 2008 (3) ALD 657 DS, which is a division bench expression of this Court of the year, 2008 that placed reliance by both sides regarding the scope of Section 32(7) read with 13(1) of the Evidence Act, holding that a deed executed by deceased Karta of joint family, the recitals can only be as between parties as to continuous and those claim under them, but by itself is not sufficient evidence to establish that suit property is self acquired property of deceased and admissibility of such recital under Section 32(7) read with 13(a) of the Evidence Act does not affect. At Para 28 to 33 of the judgment, it was observed that the recitals in the document in question in admissible under Section 32(7) and 13(a) of the Evidence Act, executed by late Muni Subbaiah by itself is not sufficient evidence to establish that suit property is self acquired. Recitals in deeds can only be the evidence as between parties to the continuous and those who claim under them at any rate a recital can be assertion of fact contained by the recital. Some other evidence must be available to substantiate the same. It is true that where alienation is questioned allowing after transaction took place, a recital in the document which is constrained with the probable and the circumstances of the case assumes greater importance, since the original parties to the transaction those who can have given efforts at the relevant point of time being grown old was passed away. However, such recital by itself does not constitute sufficient evidence to establish the extents of a fact. 15(d)(viii). The controversy is in fact set at rest by the Apex Court in the year, 2003 in its expression in RVEV Gounder v. A.V. and V.P. Temple (supra), holding that Section 34 of the Evidence Act declares as relevant, entries in books of account regularly kept in the course of business, whenever they refer to a matter into which the Court has to enquire. When such entries are shown to have been made in the hands of a maker who is dead, the applicability of Section 32(2) of the Evidence Act is attracted; and according to which statement made by the dead person in the ordinary course of business and in particular when it constrains of entry or memorandum made by him in books kept in the ordinary course of business is out way is by itself relevant. The maker of the entry is not obviously available to depose in corroboration of the entry. In a given case, depending on the facts and circumstances brought on record, the Court of facts may still refuse to act on the entry in the absence of some corroboration. Therefore, this expression in RVEV Gounder supra crystalised that the relevancy of book of accounts under Section 34 of the Act no way lost its value for admissibility and relevancy from non-examination of the maker of the entries for such person when died. 15(d)(ix). Here from the above, in so far as Ex. A2 entry in the Ex. A1 account book maintained by the late husband of PW1 that was deposed and proved through PW1 and with reference to the same cross examination was done is admissible under Sections 11 read with 32(2&3) and also under Sections 13 &34 of the Evidence Act, then to decide probative value of the entry on how far proved and disproved with reference to the evidence of PW1 and DW1and how far to act upon it, with or without corroboration, relating to the joint purchase by payment of an amount of Rs. 500/- to Ch. Lakshmi Narasimha Rao (defendant) for the purchase of plaint schedule Item-1 house site of 1200 sq yards at Mamillagudem in Khammam town, leave about the recitals in the Ex. A.9 cannot be looked into in this regard for the will is not proved as contemplated by law from what is discussed supra." 15(e). 500/- to Ch. Lakshmi Narasimha Rao (defendant) for the purchase of plaint schedule Item-1 house site of 1200 sq yards at Mamillagudem in Khammam town, leave about the recitals in the Ex. A.9 cannot be looked into in this regard for the will is not proved as contemplated by law from what is discussed supra." 15(e). Whether there is any aprobate and reprobate or inconsistent pleas taken by plaintiffs regarding plaint schedule Item-1 house site concerned; it is also the well settled principle of law that to be kept in mind that, a plaintiff can at best take alternative pleas, but cannot proceed on inconsistent pleas and even any pleas taken inconsistent to one another, he got the doctrine of election of one of the pleas thereby the other inconsistent plea being taken waived, for not entitled to approbate and reprobate. However, so far as defendant concerned, he can take any number of pleas to non-suit the plaintiff any in that course one plea may be inconsistent to the other, however, where he makes a counter claim, he is at par with plaintiff so far as the counter claim concerned and as such he cannot be permitted to make out a case inconsistent to his plea-vide decisions Balder Singh B.Manohar Singh, AIR 2006 SC 2832 , G.S. Mahalakshmi v. Shah Ranchhoddas, AIR 1970 SC 2025 & Firm Srinivas Ram v. Mahabir Prasad, AIR 1951 SC 177 . Thus, having claimed the item No. 1 of plaint schedule as only joint property of plaintiffs and defendant, cannot be claimed by plaintiffs as part of joint family property. 15(f). He, who accepts a benefit under a deed or Will or other instrument, must adopt the whole contents of the instrument, must confirm to all its provisions and renounce all rights that are inconsistent with it. Election is obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternate rights or claims in cases where there is a clear intention of the person from whom he derives the one, that he should not enjoy both. Every case of election therefore, presupposes plurality of rights, with an intention of the party who has a right to control one or both, that one is substitute for others. Every case of election therefore, presupposes plurality of rights, with an intention of the party who has a right to control one or both, that one is substitute for others. The party who is to take has a choice, but he cannot enjoy the benefit of both as laid down in Streatfield v. Streat field and explained by the three judge Bench in Nagubai Ammal v. B. Shyam Rao, AIR 1956 SC 593 , para 23 page 602 that the doctrine of election is not however confined to instruments. A person cannot say at a time that a transaction is valid and thereby obtained some advantage, to which he could only be entitled on the footing that it is valid and then turned round and say it is void for the purpose of securing some other advantage, to approbate and reprobate the transaction. In Halsbury's laws of England Vol.13, page: 454 para 572, the principle has been described as species of estoppels. The said principle has also been accepted in C. Bwepathuma v. Velasine S. Kadamboli phaya 159, AIR 1965 SC 241 at para 17&18. The Apex Court further observed in R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352 as follows: "Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". 15(g). Coming to the admissions - Admissions are relevant and must be read as a whole and cannot be split up to rely upon a part of statement to the advantage to ignore the other part which is to the disadvantage of same party. The word 'admission' has been defined under Section 17 of the Indian Evidence Act as follows:- "An admission is a statement, oral or documentary or contained in electric form, which suggests any inferences as to any fact in issue or relevance fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned". 15(g)(i). The word 'admission' has been defined under Section 17 of the Indian Evidence Act as follows:- "An admission is a statement, oral or documentary or contained in electric form, which suggests any inferences as to any fact in issue or relevance fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned". 15(g)(i). In Wigmore's Evidence, 1095 Ed., Page 1226, the word 'admission' has been defined as follows:- An "Admission" in the correct sense is a formal act, done in the course of judicial proceedings, which waives or dispenses with the production of evidence by conceding for the purposes of litigation that the proposition of fact claimed by the opponent is true" 15(g)(ii). Order VIII Rules 3-5 of C.P.C. envisage that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. There is no other provision in C.P.C. imposing such a condition on the plaintiff to deny the allegations of fact made by the defendants in their written statement. 15(g)(iii). Order XX Rule 6 of C.P.C. envisages passing of decree on admissions to the extent admitted, to put the parties to trial for rest of the lis, if any. 15(g)(iv). Thus, admission means admitting the fact which is asserted by other party. When a party pleads that there is a partition and when the other side disputes the same, it becomes a disputed fact and when it is a disputed fact, the Court has to give a finding on the said disputed fact. Of course, at a subsequent stage, a party cannot be permitted to take a contra stand to the earlier stand taken by said party. However, the admissions can be explained away and retracted. Thus, in placing reliance on admissions, conduct of the parties and all subsequent events have to be conjointly examined and reasonable conclusions basing on the probabilities of the case have to be drawn to decide how far to rely in appreciation of evidence, being relevant and otherwise conclusive. 15(g)(v). However, the admissions can be explained away and retracted. Thus, in placing reliance on admissions, conduct of the parties and all subsequent events have to be conjointly examined and reasonable conclusions basing on the probabilities of the case have to be drawn to decide how far to rely in appreciation of evidence, being relevant and otherwise conclusive. 15(g)(v). It is well laid down in Karuna Kapali v. M/s. Lalchand PC Trust, 2010(3) Scale 569 in dealing with relevancy and importance of pleadings and binding nature on facts admitted need not be proved under Section 58 read with Sec.17 and 21 of the Indian Evidence Act r/w. Order VIII Rules 3-5 CPC and Order XII Rule 6 CPC. See also- Sajjana Granites v. M.S. Rao, 2002(1) ALT 466 (DB) at para 34. 15(g)(vi). In P.S. Sairam and another v. P.S. Rama Rao Pisey, AIR 2004 SC 1619 & Hardeo Rai v. Shakuntala Devi, AIR 2008 SC 2489 - it was held that an admission made by a person cannot be split up for only part of it can be used against the maker. In fact, the correct meaning of the word 'admission' appears to be when a party in proceedings has made a statement or taken a stand and when the other side has admitted the same as true, the same amounts to admission. Thus, even when a party admits the plea or the stand of a party in earlier proceedings, the same also can be treated as an admission. 15(g)(vii). Further in Bharat Singh v. Mst. Bhagiradhi, AIR 1966 SC 405 at para 7 at Para 19-it was held by the three judge Bench of the Apex Court on admissions and its relevancy that, admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17 to 21 of the Indian Evidence Act, though party is not confronted with the statement and in such case the weight to be attached to it is a different matter. It is to say their evidentiary value is very weak and as such those are not conclusive proof of the matters admitted. It is to say their evidentiary value is very weak and as such those are not conclusive proof of the matters admitted. It was held that, admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting witness u/sec.145 of Indian Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted, while previous statement used to contradict the witness does not become substantive evidence and merely serves purpose of throwing doubt on the veracity of the witness. Thus, what weight is to be attached to an admission made by a party is a matter different from its use as relevant and admissible evidence. 15(h). Then coming to adverse possession claim, in Karnataka Board of Wakfs v. Government of India (2004) 10 SCC 639 it was held that adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is "nec-vi, nec-clam, nec-precario", that is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Physical act of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors, which are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law, but a blended one of fact and law. Therefore, a person who claims adverse possession should show - a) on what date he came into possession, b) what was the nature of possession, c) whether the factum of possession was known to the other party, d) how long his possession is continued and e) his possession was open and undisturbed. Therefore, a person who claims adverse possession should show - a) on what date he came into possession, b) what was the nature of possession, c) whether the factum of possession was known to the other party, d) how long his possession is continued and e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary for adverse possession - vide decisions: S.M. Karim v. Bibisakina, AIR 1964 SC 1254 , Parsinni v. Sukhi, 1993 (4) SCC 375 , D.N. Venkatarayappa v. State of Karnataka, 1997 (7) SCC 567 , Maheshchand Sarma v. Rajkumar Sarma, 1996(8) SCC 128 and P. Periaswamy v. P. Periathambi, 1995(6) SCC 523 . In Nakkalapu Annapurnamma v. N.N. Kumar 1997(4) ALD 97 DB - it was held that possession obtained through invalid sale by vendee can set up adverse possession against the vendor from that date as said possession is with own right to acquire title by adverse possession after statutory time. However, mere length of possession does not constitute adverse possession in the absence of animus possidendi- See also Maherndra C. Mehta v. Kousalya Co-op Housing Society Ltd. 2001(5) ALT 102, at para-15 in pointing out the distinction between Old Limitation Act ,1908 Articles 136-144 & New Limitation Act, 1963 Articles 64 & 65, in particular Article 144 (old) replaced by Article 65 (new) and with reference to Sections 27 & 28 (new) and by placing reliance upon J. Manikyam v. K. Tatayya 1992 APHN 244, Bhagwathi Pillai v. Savarimuthu AIR 1976 SC 1 21, Mahavir v. Pural Institute, 1995(5) SCC 335 & P. Periaswamy (supra). It was also held categorically at paras-19&19A that entries in the revenue records do not confer any title on the person in whose name is entered therein; nor do they extinguish right of the real owner, when the land is shown to be fallow and uncultivated. 15(i). It was also held categorically at paras-19&19A that entries in the revenue records do not confer any title on the person in whose name is entered therein; nor do they extinguish right of the real owner, when the land is shown to be fallow and uncultivated. 15(i). Coming to adverse possession among co-owners, on the doctrine of ouster, possession of one co-owner is possession of all on the basis of joint title of all on the principle that co-owner in possession would become constructive trustee on behalf of the others not in possession and even mere mutation in name of one among those no way a ground to take plea of adverse possession much less setting up secret hostile animus on his own part in derogation to other's title and or ouster of the right of others therefrom, unless there has been a clear ouster by denying title of other co-owners to their knowledge, vide decisions - Balvanth Singh v. Dowlath Singh, AIR 1997 SC 2719 , Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 77 , P.Lakshma Reddy v. L.Lakshmi Reddy, AIR 1957 SC 314 , Gaddem Chinna Dodamma v. Goka Pedda Doramma, 2005 (3)ALD 531=3 ALT 619 and Raghunath pershad v. Janakibai, 2005 (6)ALD 161. In Tricon partners v. Smt. Mandala Neeraja, 2013 (2) ALT 268 para 7 it was held that to set up ouster among coparceners as purchaser from one of co-parceners as own, their possession should be for 12 years continuous and they cannot count the possession of vendor as their possession. In Tricon partners v. Smt. Mandala Neeraja, 2013 (2) ALT 268 para 7 it was held that to set up ouster among coparceners as purchaser from one of co-parceners as own, their possession should be for 12 years continuous and they cannot count the possession of vendor as their possession. So also the decision of Modadugu Venkata Subbamma v. Kana Marlapudi Rattaiah 2008(6) ALD 2002 that the alienation of joint family property must be for benefit of the estate to bind other coparceners; so also the decisions of Vadla Krishnaiah v. Nalli Narasimha Reddy 1976 (2) APLJ page 16 and Manikyala Rao AIR 1956 SC 470 holding (by referring to Siddeswar Mukharji, AIR 1953 SC 487 , permanayakam, AIR 1952 Mad.419 and Achayya v. Venkata Subba Rao AIR 1957 AP page 8 that the purchaser of undivided share of co-parceners cannot acquire any interest in specific item of properties and claim to be put in possession that any definite piece of the family property, but for acquires on equity to step into the alienor's shoes and work out his rights by partition as the tenant in common, he cannot even in joint possession with other co-parceners and thereby cannot even claim protection under Section 53-A of the T.P. Act. Thus, so far as item No. 7 of plaint schedule, there is no adverse possession, but for plaint schedule item No. 1 even it is taken proved of joint property, against plaintiffs by defendant. 15(j). Regarding presumption of joint family property, sufficiency of nucleus, jointness in a family, disruption and burden of Proof: "15(j)(i). In Appasahab Peera Chamdgade v. Devendra Peerappa Chamdgade, 2007(1) SCC 521 it was held at Paras 12-17 - referring to Shrinivas KK v. Narayn DK (three judge Bench), AIR 1954 SC 379 Mst. Rukhmabai (three judge Bench-supra), Atchuthan Nair v. Chinnamu Amma, AIR 1966 SC 411 , Bhagwath P. Sulake v. Digambar Gopal Sulake, AIR 1986 SC 79 and Surendrakumar v. phoolchand, 1996(2) SCC 491 : AIR 1996 SC 1148 that, the initial burden is on plaintiffs to show that the property is joint family property and then it shifts on the defendants to show that the property claimed by them was not purchased from out of the joint family nucleus and it was purchased independent of them. On facts held the defendants failed to establish any sufficient funds out of which they could acquire any of those claimed as own and thereby held all the suit properties are joint family partiable properties. 15(j)(ii). In Mst. Rukhmabai (supra), it was held in para-5 that, there can be division in status among the members of a joint family by definement of shares which is technically called division in status or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds. A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members' vis-à-vis the family property. A division in status can be affected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which said property could have been acquired, the burden shifts on the members of the family setting up the claim that it is his personal property to establish that said property has been acquired without any assistance from the joint family property. 15(j)(iii). In Mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh, AIR 1969 SC 1076 also the Supreme Court observed thus: The law on this aspect of the case is well settled, of course, there is a presumption that there is a Hindu joint Family; however, there is no presumption that Hindu family merely because it is joint it possesses any joint property. The burden of proving that any particular property is joint family property is therefore, in the first instance upon the person who claims it as Coparcenary property. The burden of proving that any particular property is joint family property is therefore, in the first instance upon the person who claims it as Coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be the joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown; that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate-see also Rajendra Nath Majhi v. Tustu Charan Das, AIR 1969 Calcutta 105. 15(j)(iv). In Jamunabai v. Saradhabai, 1998(4) ALD 655 it was held at para-17 relying upon Mudigowda Gowdappa Sankh (supra) and Appalaswamy v. Suryanarayana Murthy, AIR 1947 PC 189 , that there is no presumption that property standing in the name of one of the members of the joint family is the self-acquired property of him, when evidence is showing existence of nucleus to acquire the property in the absence of proof of self-acquired property to hold as part of joint family property. 15(j)(v). In Kakumani Subbarao v. Venkateshwarlu, 2012(5) ALD 161 it was held that in the suit for partition filed by the plaintiff claiming some of the items as self-acquired and the other items that are partiable, the defendant's plea that those also part of the joint family properties, where plaintiff and defendant living together till date of suit, initial burden is on the defendants to show joint family possessed sufficient nucleus with which said property could have been acquired; and if it is shown of sufficient nucleus burden would immediately shift on to the plaintiff to show that the property was not joint family property, but his self-acquired property; and in the absence of clinching evidence from his side very establishment of sufficient nucleus for joint family property would attract presumption that the property is joint family property as mere recitals in the sale deed stands in the name of the plaintiff does not draw a presumption of plaintiff is owner of the properties. The admissions in the suit in pleadings and evidence by a party can be relied upon by the other party to the suit in proof of respective claims. 15(j)(vi). It was also held in the division bench expression of this Court in the year, 2008 in Jayan v. Jayala Laxman, 2008 (3) ALD 657 DB at Para 21 that, it is the settled proposition that, property cannot be presumed to be joint family property from existence of joint family as burden of proof. The property as the joint family property always lies on the person who so asserts, however, once he proves that the family possessed sufficient nucleus and with aid of which the suit properties could be acquired, then presumption has to be drawn that the properties are joint and consequently the burden of proof shifts on the person claiming to be his self acquired. 15(j)(vii). In P. Subbalakshmi v. P. Ramya, 2011(1) ALT 256 it was held in the partition suit regarding burden of proof on the claim of self-acquisition by one of the members of the joint family with coparcenery, that even while being a coparcenery in a joint family it was permissible for the defendant to acquire properties by himself and oppose any steps for partition thereof, that could have been possible if only he has established through cogent evidence that he is possessed of adequate means and had necessary funds at his disposal to purchase the properties. 15(j)(viii). In K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer, AIR 1965 SC 289 also it was held with reference to the presumption that, properties in the name of any member of the family are of with the family funds and that such property would constitute and form part of the joint family property, if it is shown that the joint family has sufficient nucleus. See also - Pabbathi Anjaneyulu v. Pabbathi N.Rathnamaiah Chetty, 2005 (4) ALD 291 ; D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310 ; Srinivas Krishnarao Kango v. Narayan Devji Kango AIR 1954 SC 397 (1) and Mst. Rukhmabai (supra). 15(j)(ix). In Kasaram Jayamma v. Jajala Lakshmamma, 2008(3) ALD 657 DB also it was held that, once it is shown property is joint, the presumption to be drawn is that other acquisitions are also joint and the burden is on the person claiming to be self-acquired, so to prove. 15(j)(x). Rukhmabai (supra). 15(j)(ix). In Kasaram Jayamma v. Jajala Lakshmamma, 2008(3) ALD 657 DB also it was held that, once it is shown property is joint, the presumption to be drawn is that other acquisitions are also joint and the burden is on the person claiming to be self-acquired, so to prove. 15(j)(x). In Nakkarapu Annapurnamma(supra) it was held that, though there is no presumption that a family because it is joint possessed joint family property and thereby the person alleging the property to be joint has to establish that family possessed of some property with the income of which the property could have been acquired, which is a rebuttable presumption of fact. But where it is established or admitted that family possessed joint property which form its nature and relative value may form sufficient nucleus from which the property in question may have been acquired, the presumption arises that it is the joint family property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family and to that proposition placed reliance upon the expression of the Apex Court in Surendrakumar (supra). 15(j)(xi). In Sher Singh v. Gamdoor Singh, AIR 1997 SC 1333 - it was held at para-5 that, once existence of the joint family is not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless any one of the coparceners pleads by separate pleadings and proves that some of the properties or all the properties are his self-acquired properties and could not be blended in the coparcenary property. 15(j)(xii). In Appasahab Peera Chamdgade (supra) at Para 15 referring to Bhagwath P.Sulake (supra) it was specifically held that, the character of any joint family property does not change with the severance in status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act, it is not open to any member of the joint family to convert any joint family property into his personal property. 15(j)(xiii). By a unilateral act, it is not open to any member of the joint family to convert any joint family property into his personal property. 15(j)(xiii). In Shankara Rao Daiji Saheb Shinde v. Vithalrao Ganpathro Shinde, AIR 1989 SC 879 - it was observed that, there is a presumption of jointness in a family governed by Hindu Mitakshara Law and that the initial burden lies on the party who alleges partition that the members of HUF had separated to prove the same, to support his claim of disruption in the joint Status-see also Sital Singh v. Ram Prasad Singh, AIR 1957 Patna 398(DB). 15(j)(xiv). In Awadh Ram Singh v. Mahaboob Khan AIR 1924 Oudh 255 - it was held that the burden is on the person to prove separation and even mutation of the joint family property in favour of individual members of the family, unsupported by other circumstances of division, do not raise a presumption of separation. 15(j)(xv). In Maherndra C. Mehta (supra) it was also held categorically at paras-19&19A that entries in the revenue records do not confer any title on the person in whose name is entered therein; nor do they extinguish right of the real owner, when the land is shown to be fallow and uncultivated. 15(j)(xvi). The Allahabad High Court clarified in Ram Gopal v. Smt. Maya Devi, AIR 1978 Allahabad 119 - that it would not be possible always to establish the date of ancient partition, however, the execution of sale deed by the members of the family together with recitals of partition would be decisive to establish whether partition had not been effected or otherwise. 15(j)(xvii). Further in Bharat Singh v. Mst. Bhagiradhi, AIR 1966 SC 405 Para 7 at Para 7, it was held by the three judge Bench of the Apex Court that, there is a strong presumption in favour of the Hindu brothers constituting a joint family. It is for the person alleging severance of the joint family to establish it. The mere fact that mutation entry made in favour of widow of one of the three brothers indicating share of each to be 1/3rd by itself can be no evidence of severance of joint family or partition. 15(j)(xviii). It is for the person alleging severance of the joint family to establish it. The mere fact that mutation entry made in favour of widow of one of the three brothers indicating share of each to be 1/3rd by itself can be no evidence of severance of joint family or partition. 15(j)(xviii). In Ratnam Chettiar v. SMK Chettiar, AIR 1976 SC 1 it was held that where partition deed executed of the partition effected between members of the Hindu Undivided Family by their own volition, it cannot be reopened unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence and in such a case, the Court should require a strict proof of facts because an act inter-vivos cannot be lightly set aside. Even some of the family members are minors if it is done in good faith keeping the interest of the minors and bona fide, unless it is proved to be unjust and unfair and detrimental to the interest of such minors to reopen. As it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. 15(j)(xix). In Bishnudeo v. Seogeni Rai, AIR 1951 SC 280 - it was held of the well established principle that a minor can sue for partition and obtain a decree if his next friend can show that it is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of the joint family when one of the members is a minor. In the case such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust the Court will certainly set it aside. 15(k)(i). In the case such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust the Court will certainly set it aside. 15(k)(i). On the separate business of coparceners, when constitutes family business and when not concerned; in G.Narayanaraju v. G. Chamaraju, AIR 1968 SC 1276 -it was held by the Apex Court(three judge Bench) referring to Chattanatha Karayalar v. Ramachandra Iyer, AIR 1955 SC 799 and Bhurumal v. Jagannadh AIR 1942 PC 13 that, there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business unless it could be shown that the business of the coparcener grow up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. 15(k)(ii). Separate acquisitions by coparceners when constitutes family property and when not concerned; in Madanlal v. Yoga Bai, AIR 2003 SC 1880 - it was held by the Apex Court, confirming the findings of the Andhra Pradesh High Court's expression in Poornabai v. Ranchhoddas, AIR 1992 AP 270 DB (of nature of joint family property does not change merely because coparceners live separately and in the absence of proof by filing sale deeds and examination of witnesses of purchase with self earnings to support the plea of purchased from own earnings of self business income as self-acquired property, the properties be held as joint family properties, from the business in different names is the family business and the subsequent acquisitions are made out from out of the profits and earnings of the said business with the joint efforts of the father and sons that constitutes joint family properties amenable for partition), that "it is sought to be established that they have been running their business separately under different partnerships. We feel that no such inference can be drawn. Mere family carries on a number of business, it is quite often that it is carried out under different names and styles and often constitutes different companies are partnerships for better handling of business or to keep it manageable or for various other reasons. We feel that no such inference can be drawn. Mere family carries on a number of business, it is quite often that it is carried out under different names and styles and often constitutes different companies are partnerships for better handling of business or to keep it manageable or for various other reasons. It is no proof of separation nor are the letters which are sought to be relied upon written to the income tax authorities and the assessment orders passed by the income tax authorities. Therefore, once the family settlement before the suit for partition was filed is not accepted by means of a finding of fact recorded by the High Court, the case of the defendant falls through." 15(1). On the doctrine of blending, it was held in G.Narayanaraju (supra) that, even property originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims up on it. Such intention can be discovered only from the words or acts and conduct. Point Nos. 1, 3 to 6, 9 and 10: 16. From the above legal position, for deciding the above points 1, 3 to 6, 9 and 10 for consideration by discussing the facts in dispute; it is just to refer the undisputed facts of the lis which are as follows: 16(a). Admittedly, the existence and correctness of description and extents of the plaint schedule consists of 7 items not in dispute. Among the plaint schedule 7 items, it is also not in dispute by defendant of Items 2, 4 & 7 are part of the properties of the Hindu Mitakshara joint family coparcenary consists of Sri Cheedella Radha Krishnaiah and his sons-Nagabushanam(father of plaintiffs-2-7) and Lakshmi Narasimha Rao (defendant). It is also not in dispute of Nagabushanam worked as a teacher and retired from service before his death. It is the claim by defendant also by placed reliance upon the cross examination evidence of PW1-1st plaintiff that, the defendant was bringing cloth from Madras and was selling at the nearby villages and also worked as press reporter and used to do P.W.D. contracts to say the defendant has also some other source of income, irrespective of sufficiency or otherwise to maintain his family and further to invest in any business or to acquire any property. 16(b)(i). 16(b)(i). From the above, it is important to consider whether there was any actual partition in the year, 1944 or later but for convenient enjoyment of some of the extents pending partition and any sharing of income, rather in exclusive management of defendant. In this regard, as per the expressions of the Apex Court supra, the burden of proof undisputedly lies on the defendant to prove the alleged oral partition in the year, 1944, on the 12th day of the death obsequies of his father. For that, it is important to note that, it is not even specifically averred in his written statement as to what properties with respective extents of what village in the said partition, the two brothers each get, though, those are the material particulars required and should have been stated. What all averred in his written statement as vaguely as anything is that in the said partition, the two brothers got properties at Rayanpadu, Velagaleru, Ibrahimpatnam, Kethampudi, Trilochnapuram, Elaprolu and Kondapalli villages, and but for of plaint schedule admitted items, the properties in all other villages were later even sold. It is unknown if the so called full partition of all properties after death of their father on the 12th day of obsequies if really effected between the two brothers in the year, 1944; where is the question of holding some properties joint or sale of some properties jointly later. There is no any explanation even to say irrespective of actual partition and separate possession and enjoyment, for not evidenced by document at request of vendees they jointly executed the documents. There is nothing even by filing any of the documents by the defendant with such recitals. In this regard, the D.W.1-defendant also admitted in his cross examination that during the year, 1946 (two years after the so called effected between the two brothers in the year, 1944) they were holding properties in joint and they jointly sold the lands of Ibrahimpatnam in the year, 1946 and also of Kondapalli during the years 1946-1947. Therefore, even after, 1944, properties were held by them jointly and also sold by them jointly, which could not be the outcome, had there been a partition really of all properties, between the two brothers. Therefore, even after, 1944, properties were held by them jointly and also sold by them jointly, which could not be the outcome, had there been a partition really of all properties, between the two brothers. Suffice to say the alleged oral partition of the year, 1944 is not at all true and fraudulently set up by the defendant to serve as a defence to prolong the suit. It is also to say, mere convenient enjoyment of any extents does not infer actual partition and separation as also held by the Apex Court in several of the expressions including the latest in Madanlal (supra). 16(b)(ii). Added to it, importantly, there is non-filing of the material document by the defendant of the so called partition list said to have been executed evidencing the so called partition of 1944, even that throw a bright light on the lis to support said version if true and if filed. Thus, the non filing also leads to the adverse inference against the so called version of partition of 1944 and evidencing of the same executed partition lists of even date, to say no such partition and no partition list was executed as claimed; as had it been, it could have been filed, but for non-est. - vide three judge bench expression in Gopalakrishnaji ketkar(supra). As his witness D.W.2-Hari Subrahmanyam what all deposed about said partition in the year, 1944 on the 12thday ceremony of the defendant's father was covered by the partition list prepared on that day regarding all the movable and immovable properties of them partitioned and both parties signed the partition lists prepared and one copy given to the defendant and another copy to Nagabushanam, that was not disputed by the defendant by re-examination of the witness-DW2, much less by cross examination with permission under Section 154 of the Evidence Act, though there is cross examination of the witness by Plaintiffs disputing the very alleged partition and execution of partition lists and taking of each one copy. If at all the defendant wants to rely on the evidence of his own witness D.W.2, it must be to the extent of partition list also for above reasons and he cannot ask to ignore that part and to rely on the rest, for the evidence is to be read as a whole regarding alleged partition and execution of document on that date. As such, non-filing of said document which is crucial, not only leads adverse inference to infer that, but for no such partition took place and no list prepared the same could be filed; but also that the evidence of D.W.2-Hari Subrahmanyam of what all he deposed about said partition as if effected in the year, 1944 on the 12th day ceremony of the defendant's father, is a false version and he was set up so to depose and in his over enthusiasm, he deposed for non existing facts as if also a partition list to give strength to the false version and unmindful of the implications therefrom. Apart from it, the non examination of Sadu Ramakrishnaiah, a material witness to speak the so called partition is also fatal to draw adverse inference against the case of the defendant of alleged partition is false, as held by the Apex Court in Karnesh (supra) as without his examination, proving of his alleged affidavit stated attested by DW3 is not suffice to read as statement of dead person. It is for the reason that, affidavit by itself is not evidence by virtue of Section 1 of the Evidence Act which says that Evidence Act has no application to affidavits and by the time it was filed even the CPC amendments not came into force under Order 18 Rule 4 CPC even where under to say unless the same is taken on oath by Court to read as chief examination evidence and if it was filed in interlocutory application to support version of defendant as third party affidavit, it is not evidence in suit. Furthermore, he was alive by the time the defendant sought to summon him, so also by the plaintiff, to say the same is not even admissible either under Section 32 or under Section 33 of the Evidence Act. Furthermore, he was alive by the time the defendant sought to summon him, so also by the plaintiff, to say the same is not even admissible either under Section 32 or under Section 33 of the Evidence Act. 16(b)(iii).The law is well settled as per the expressions of the Apex Court referred supra that statement on oath or previous deposition even of a living person is admissible in evidence only for purpose of corroboration that too on calling to witness box and draw his attention to refresh his memory to speak therefrom if any under Section 157 Evidence Act or otherwise to confront with the same for any contradiction under Section 145 r/w.155(3) Evidence Act to disprove any contra version and to book for perjury or the like if gives two versions on oath in contradistinction to say one of the two is false, unless the witness could not be examined for not alive or out of reach from not knowing the whereabouts by bringing within the purview of Section 33 of the Evidence Act. No doubt, Plaintiffs and defendant filed applications to examine said Rama Krishnaiah on commission and the Court allowed the defendant's application in I.A. No. 1575 of 1985 dated 21.11.1985, but it was not properly availed by the defendant for the reasons that, subsequently the defendant not pressed the same saying the witness was not in a position to speak. It clearly speaks the defendant wanted to avoid examination of the material witness before the Court, only to hush up the truth from being revealed by his examination and as a ruse made the attempt by filing application to see his application to be allowed rather of plaintiffs, with no mind to examine and having obtained permission did not choose to examine, otherwise, he could have examined. Further to say that he was being available not even in a position to move and speak, he could have obtained a medical certificate of the witness's said condition if so unfit and could have filed before the Court and took the Commissioner appointed also for his observation of the condition of the witness that too having been appointed to examine on commission. Beyond that, he has no right to not press the execution of commission warrant for examination of the witness, at his own volition. Beyond that, he has no right to not press the execution of commission warrant for examination of the witness, at his own volition. It clearly speaks an unscrupulous act on the part of the defendant to avoid examination of the material witness to the alleged partition of 1944; and to serve as counter to application of plaintiffs to cause examine him before court to elicit the truth of no such partition. The mere filing of memo of not in a position to speak is not even enough, without proof of that fact by medical certificate and observation of commissioner already appointed to examine the witness. It is also for the reason that there is no basis to say unfit to depose, having filed application to examine him by commission, in suddenly filing a memo without examination and without taking commissioner to the witness to know the condition and in the absence of showing what health change in between the short span to the non-examination-vide decision in Sajjana Granites v. M.S. Rao, 2002(1) ALT 466 (DB). 16(b)(iv).It is in this background, thereafter even Plaintiffs also filed their application I.A. No. 448 of 1986 to cause examine that witness and even it was allowed on 24.04.1986, plaintiffs could not examine the witness as said witness was not available in the village for the Commissioner to examine as also evidenced by the Commissioner's report of the witness was not found despite efforts to examine. It also speaks of the witness not in a position to move or depose is nothing but false; as that witness left the village by the time plaintiffs went with commissioner to cause examine him to elicit the truth. It shows he was managed to leave the village to avoid his examination to hush up truth of no such partition in the year, 1944. Thus, the defendant by subsequent death of Sadu Rama Krishnaiah as on date of arguments in the suit and judgment, cannot ask the Court to rely on his so called affidavit before Tahsildar as statement of dead person under Section 32 Evidence Act, besides the same won't come under Section 33 Evidence Act, for not in a judicial proceeding, the so called affidavit said to have been only attested by the Tahsildar-D.W.3. 16(b)(v). Thus, what D.W.3-Tahasildar, Jaggaiahpet deposed of in May, 1984 he attested the Ex. 16(b)(v). Thus, what D.W.3-Tahasildar, Jaggaiahpet deposed of in May, 1984 he attested the Ex. B.6 affidavit given by Sadu Ramakrishnaiah after Sadu Rama Krishnaiah putting his thumb impression on the affidavit, by then was paralytic-as mentioned in the affidavit is not enough to give credence to the affidavit contents as true. What DW3 further stated is nothing but contents in the affidavit of Nagabushanam and Lakshmi Narasimha Rao are the deponent's sister's sons and in June, 1944 the defendant's marriage was celebrated at Yerrupalem and on the 15th day of marriage, their father-Ramakrishnaiah died and he attended the obsequies and his other sons' in law Hari Sitaramaiah & Hari Venkatappaiah Sharma also attended the marriage and obsequies and that the movable and immovable properties left by Radha Krishnaiah were all divided by Nagabushanam and Lakshmi Narasimha Rao in the presence of elders and the residential house at Yerrupalem, dry land of Ac.17.92 cents at Rayanpadu village, wet land of Ac.4.11 cents at Velagaleru village were still existing, which was being enjoyed separately as other lands at Kondapalli, Ibrahimpatnam, Kethamkonda, Elaprolu and Trilochnapuram were sold by both of them. Even, this version in the affidavit suppressed from speaking several properties kept joint and later sold and what is stated of all properties partitioned or but for plaint schedule Items 2&7 all other properties already sold is false and created in ignorance of ground realities or to suppress the truth. It is also falsifies, if the affidavit is read with D.W.1's evidence supra of later jointly cultivated and enjoyed the properties and jointly sold some of the properties, even in the years 1946-47. Thus, it also belies the so called partition of 1944 and substantiates the Plaintiffs' contention of said affidavit is a document brought into existence with the help of son of Rama Krishnaiah, who is acquainted with D.W.3, and said Rama Krishnaiah was purposefully not examined with some unscrupulous attempt to create a show to examine, with no real intention either to cause examine or to facilitate other side to examine, but to avoid his evidence to come on record on oath by judicial process and later make use of this document, might be and in all probability of what is discussed supra, not a genuine attempt on the part of the defendant in this factual background as claimed by the plaintiffs to substantiate said contest of the plaintiffs. Thus, no credence to be given to said affidavit contents or so called attestation of it by DW3, much less to say therefrom to corroborate any evidence of alleged partition in the year, 1944. 16(b)(vi). In this background, the non filing of partition list deposed by DW2 as prepared and available with parties, even disputed by plaintiffs, if true in withholding and not disputing if not true as discussed supra and non examination of Ramakrishnaiah and admissions by DW1 of even after, 1944 there were the properties kept in joint possession and enjoyment and also later alienated jointly; that could not have been arisen, but for no partition, for not a case of partial partition for any reason, leave about its validity or not to bring in severance of status. Thus, the so called oral partition is nothing but false, as not only could not prove as true, but also the above discussed facts and circumstances are more than suffice to say disproved in so saying false. It is also for the reason that, no revenue mutation in records like A register immediately after that at least within few years from the year, 1944 by separate payment of tax and separate cultivation and enjoyment from revenue Adangals and accounts, if really partition affected that could be mutated, leave about subdivision immediately; which all further disprove the so called oral partition of 1944 set up by the defendant, equally several letters and post cards etc., showing joint cultivation including through tenants several extents and receiving and sharing rents later for many years, to say there was no partition and the joint family property continued in joint possession and enjoyment of the two brothers, but for any extents taken for time being for convenient personnel enjoyment and for other to share the rents by leasing out to tenants jointly. 16(b)(vii). Even coming to other evidence on record regarding no believability of so called oral partition of the year, 1944 allegedly on the 12th day of death of Ch. Radha Krishnaiah; the defendant-Lakshmi Narasimha Rao was hardly 10 years old whose marriage admittedly performed few days before the death of his father Radha Krishnaiah. If we further analyze truth or not of Ex. Radha Krishnaiah; the defendant-Lakshmi Narasimha Rao was hardly 10 years old whose marriage admittedly performed few days before the death of his father Radha Krishnaiah. If we further analyze truth or not of Ex. P.6 affidavit contents, the so-called deponent Sadu Ramakrishnaiah, the maternal uncle of Nagabushanam and Lakshmi Narasimha Rao and father of 1st plaintiff Padmavathi; what DW.3 deposed was he attested the Ex. P.6 affidavit of the deponent Sadu Ramakrishnaiah on 08.05.1984, being a pendenti liti document (pendenti-litum mortum), with no much sanctity as per the expressions of the Apex Court referred supra in this regard also. The suit covered by the present appeal filed in the Vacation Court, Khammam was dated 01.05.1984 and the affidavit given is after the suit date and secured for the suit purpose from the said deponent Sadu Ramakrishnaiah, no other than the father of Sadu Gopal and Viyyanka of defendant-Lakshmi Narasimha Rao, for the fact that Sadu Gopal is the son-in-law of the Lakshmi Narasimha Rao and he was set up as if tenant for the plaint schedule item 2 land and the litigation went against him with such observations and findings, to say his relationship is more in strength to the defendant rather than to the plaintiffs. As can be seen from the father's name of Sadu Gopal referred in the tenancy litigation covered by Exs. A.3 to A.5 proceedings and undisputedly the ATC filed Sadu Gopal was even prior to the filing of the present suit in the Vacation Court in 1984 to say by then Lakshmi Narasimha Rao by son-in-law Sadu Gopal already filed tenancy case against his brother Nagabushanam, wife and sons, the plaintiffs herein. To substantiate the contention of the plaintiffs in the suit including from the cross-examination of DWs. 1 and 3 in saying at the instance of Sadu Gopal and Lakshmi Narasimha Rao, the affidavit is brought into existence and not voluntarily given by Sadu Ramakrishnaiah and it is not a genuine one. To substantiate the contention of the plaintiffs in the suit including from the cross-examination of DWs. 1 and 3 in saying at the instance of Sadu Gopal and Lakshmi Narasimha Rao, the affidavit is brought into existence and not voluntarily given by Sadu Ramakrishnaiah and it is not a genuine one. It is in this background even filed application to cause examine the deponent-Sadu Ramakrishnaiah by defendant and obtained the order, not pressed without examination to suppress the truth of the affidavit contents being proved false if he go into witness box and even plaintiffs filed their application and allowed, he was not made available to cause examine by plaintiffs from the observation of the Commissioner of not available in the village to examine. Surprisingly, he did not mention the relationship for the reasons better known; even it is born by record of said fact from other material undisputedly including from the tenancy proceedings. It is also important to note that he did not whisper in the affidavit para 2 in saying the so-called parties after death of Radha Krishnaiah by his sons Nagabushanam and Lakshmi Narasimha Rao in the presence of elders as to who were the elders present, he is one of the elders, but for vaguely saying he and his three co-son-in-law (son-in-law of Radha Krishnaiahiah) attended the marriage of the defendant Lakshmi Narasimha Rao and also the death of Radha Krishnaiah. He not even stated of in their presence the alleged partition affected. He did not mention presence of Hari Subramanyam-DW.2 as one of the elders to the alleged partition and the evidence of DW.2 Hari Subrahmanyam as if in his presence there was a partition in 1944 on the 12th day of death of Radha Krishnaiah has to be doubted for no mention of the fact even the affidavit is a pendenti liti document and stated in the cause title is proof of the suit and the parties names and its pendency in Sub Court, Khammam as O.S. No. 60 of 2004 originally filed in Vacation Court as O.S. No. 1 of 1984 in giving therein. Leave about what is discussed already of the untrustworthy and incredibility of the evidence of DW.2, from the affidavit is also silent regarding DW.2's presence as one of the elders. Leave about what is discussed already of the untrustworthy and incredibility of the evidence of DW.2, from the affidavit is also silent regarding DW.2's presence as one of the elders. In the said affidavit of Sadu Ramakrishnaiah under discussion, he did not mention the so called partition orally and any execution of partition list evidencing the same and the date when in was effected and whose presence or as to how many days after death of Radha Krishnaiah. He did not even mention that in the days of death of obsequies of Radha Krishnaiah, much less on 12th day the alleged partition affected. Apart from the affidavit is silent in this regard and vague as stated supra, it is a false version in the affidavit para 2 as if by then owned about only the lands at Rayanpadu Ac.17.92 cents, Velagaleru Ac.4.11 cents and residential house at Yerrupalem that were as on date only existing for partition (Plaint schedule items 2, 4 and 7) and that are to be enjoyed there from separately, in alleging further the other lands at Kompally, Kotikalpudi, Ibrahimpatnam and Elaprolu all the ancestral properties of them were as if sold by both of them. In his saying by the date of the oral partition in the year, 1944 only the three items remained for partition and other properties of different villages of different extents as if sold away, which is nothing but false for there are several extents later sold by them jointly as admitted by DW1 that also discussed above. In his saying by the date of the oral partition in the year, 1944 only the three items remained for partition and other properties of different villages of different extents as if sold away, which is nothing but false for there are several extents later sold by them jointly as admitted by DW1 that also discussed above. Apart from it, he did not even whisper how the Yerrupalem house was divided and who got which portion, how the Velagaleru land was divided and who got which extent and on which side if any single plot or if in different plots who got what extent in each respectively, so also for the single plot of the land at Rayanpadu as to who got how much extent and on which side and further with what easementary rights, if any, referred for the passage or water source or the like for the convenient enjoyment from any necessity which are important, if at all, there was partition and within his knowledge to state but silent in this regard of material details to say the affidavit is not only vague but also with false versions and not to give any credence to it for no probative value to the document and no credibility to the version of the deponent for the reasons supra and also stating here under, even taken for arguments sake as admissible and relevant, its evidentiary value to favour the defendant is zero. 16(b)(viii). Further, among the Exs. A.1-11 and B.1-14 exhibited during trial and the additional evidence now received for both sides and exhibited as Exs. A.12 to A.28 and B.15 to B.20 respectively as detailed in the previous paras of this judgment and from its correlation to the following, belie the affidavit contents and also to belie the oral partition of the year, 1944-viz., (1) Ex. A.7 is the postcard dated 17.07.1951 written by the defendant-Lakshmi Narasimha Rao to his brother Nagabushanam in English with the contents that Mallela Kondaiah of Ibrahimpatnam(tenant) paid Rs. 600/-on 21.03.1950 Tuesday, balance land rent of fasli 1358 and 1359. It indicates the said land of Ibrahimpatnam, alleged in the affidavit Ex. B.6 para 3 as if already sold, though not sold and it was in joint possession and enjoyment even during the year, 1950-1951. 600/-on 21.03.1950 Tuesday, balance land rent of fasli 1358 and 1359. It indicates the said land of Ibrahimpatnam, alleged in the affidavit Ex. B.6 para 3 as if already sold, though not sold and it was in joint possession and enjoyment even during the year, 1950-1951. Had it been true of alleged oral partition in 1944 or alleged sale prior to that, the question of referring to his brother in the letter regarding rent for the year 1950-1951 collected by the defendant from the tenant does not arise. It also shows rents collected by the two brothers while jointly leasing out the lands to tenants without partition even during the year, 1950-1951. Further, Ex. A.8 is another letter of defendant dated 25.12.1959 stating that he met Gopalakrishnaiah on the previous day night, who is unable to give the amount and as he was proceeding to Tirupathi, requested Gopalakrishnaiah to pay the amount to him i.e., Nagabushanam or to Hari Sitaramaiah on that day and asked Nagabushanam to enquire about the land and Petchu Kata Vigara properties for rent and also asked Nagabushanam to better meet surveyor to survey the land of Rayanpadu village (plaint schedule item 2, Ac.17.92 cents) and to go to Ibrahimpatnam and ask the amount from Mr. Chalasani Venkateswarlu(tenant). It also indicates that even by the year, 1959 December, the plaintiff schedule item 7 Rayanpadu lands still in their joint possession and enjoyment in referring to meet surveyor to survey the lands of Rayanpadu and Ibrahimpatnam lands are also in joint possession and enjoyment cultivating through tenants in asking him to meet the Chalasani Venkateswarlu for rent of Ibrahimpatnam land and in referring to collect the rent from Gopalakrishnaiah for not paid to him. Ex. A.28 document which is one of the documents in the additional evidence document of the appellants received and exhibited in the appeal is the lease letter for one year with date in the fasli 1364 mentioning Telugu Almanac also dated 19.07.1954 for the land of Ac.10.56 cents known as Ponugubeedu in Document No. 99 of Ibrahimpatnam village in favour of Nagabushanam and Lakshmi Narasimha Rao jointly executed by referring them as joint Inamdars by the tenant Chalasani Venkateswarlu for rent of Rs. 650/-. Further, Ex. A.27, which is also one of the additional evidence documents received all the appellants another lease letter for fasli 1365 for annual rent of Rs. 650/-. Further, Ex. A.27, which is also one of the additional evidence documents received all the appellants another lease letter for fasli 1365 for annual rent of Rs. 550/- with similar description for the Ibrahimpatnam land Ac.10.56 cents, dated 22.07.1955, ek sal (one year lease) executed by Chalasani Venkateswarlu in favour of Nagabushanam and Lakshmi Narasimha Rao by referring them as joint Inamdars of the land. Thus, it speaks the Ibrahimpatnam land of Ac.10.56 cents in their joint possession and enjoyment even during the years 1954-1955 from Exs. A.28 and 27 supra and also from this part of the contents of Ex. A.8-letter in referring by defendant addressing to Nagabushanam, later to go to Ibrahimpatnam and ask the tenant Chalasani Venkateswarlu to pay the rent. Further, Ex. A.8 as referred supra speaks Rayanpadu land in their joint possession as Inamdars to be surveyed and it also speaks the rent to be collected from one Gopalakrishnaiah, which he could not collect and ask from going to Tirupathi asked Nagabushanam to collect or to cause collect through Hari Sitaramaiah. Apart from it, Ex. A.10 is the letter of Nagabushanam to the Tahsildar, Vijayawada Taluk dated 07.11.1974 in addressing to grant remission of the land revenue for the fasli 1384 of the years 1974-75 for their land of Ac.4.00 and add in T.D. No. 380, Survey No. 342/2 of Velagaleru (plaint schedule item-7) from the crop failure for scarcity of water and latter of timely rent with no paddy yield. It speaks the said entry of Velagaleru land covered by item 4 of the plaint schedule of Ac.4.00 and add even by 1974-1975 in their joint possession and enjoyment without division and when such is the case any subsequent sub-division even for the acquisition purpose referring the subdivision with respective extents equally in the name of Nagabushanam and Lakshmi Narasimha Rao by the Land Acquisition Officer and payment of separate compensation by the proceedings initiated under Ex. B.7 Section 9(3) & (10) of the Land Acquisition Act, notices dated 01.03.1982 and any sale of the land of about Ac.1.00 by the defendant out of the remaining Ac.2.23 cts after excluding the acquired land of Ac.2.00 and add and the remaining Ac.1.19 cts now in the possession and enjoyment of the plaintiffs and the evidence of plaintiff's witness in the cross-examination (P.W.4 or P.W.5) in saying even earlier rents paying separately equally no way tantamount to partition and as per the settled law any convenient enjoyment or any revenue sub-division for said convenient enjoyment does not amount to partition, but for to say they were while keeping the lands joint sharing the rents and income and the lands were not in exclusive management of the defendant to say any acquisitions of him are part of joint family of him and plaintiffs. In the absence of actual partition and when there is no partition, it cannot be contended from the alleged partition set up orally, not proved and otherwise proved false for these reasons and any proposition of partition once effected voluntarily cannot be reopened has no application to the present facts from the legal proposition detailed supra. Apart from it, Ex. A.11-letter of Lakshmi Narasimha Rao dated 13.11.1952 addressed to his brother Nagabushanam of his going to Ibrahimpatnam as required in the letter of Nagabushanam on that day and in asking Nagabushanam also to come on Sunday there for arrangement of paddy and which speaks even during 1952, the Ibrahimpatnam lands were under their joint possession and enjoyment as joint Inamdars without division and Ex. B.6 affidavit as if Ibrahimpatnam lands also sold is proving false. Further, Ex. A.12 one of the additional evidence documents of the appellants received is the registered sale deed document No. 1393 dated 12.06.1995 executed jointly by Nagabushanam and Lakshmi Narasimha Rao and their undivided minor sons represented by them as guardian respectively as were by then, in sale of the land of Ac.8.24 cents of Yerrupalem village in D. No. 125 patta 205 by referring in the sale deed recitals in favour of the vendee Mandadi Venkayamma as their ancestral property and in their joint possession and enjoyment. This also falsifies Ex. B.6 affidavit Para 2 and contents of these lands also sold already prior to 1944, apart from falsifies alleged partition of 1944. Similarly, Ex. This also falsifies Ex. B.6 affidavit Para 2 and contents of these lands also sold already prior to 1944, apart from falsifies alleged partition of 1944. Similarly, Ex. A.13 also one of the additional evidence documents of the appellants received another registered sale deed No. 1204 dated 15.04.1959 executed in favour of Jonnalagadda Ramakotaiah and Palle Chinnaramaiah by Nagabushanam and Ramulu and their undivided sons respectively minor represented by them as guardians as was then by sale of Ac.8.93 cents land in Survey No. 31 T.A. No. 564 of Kotikalapudi village by referring them as their ancestral property in their joint possession and enjoyment. Similarly, so far as Ibrahimpatnam land concerned in addition to what is discussed supra, what it was shown during 1954-1955 Chalasani Venkateswarlu was the tenant and prior to that as per Exs. A.16 to 18 dated 04/05.06.1992, it shows by then joint personal cultivation and enjoyment from the letters executed by the person, who ploughed Ibrahimpatnam land of Ac.10.56 cents, Ponugubeedu D. No. 99 for each plough of bulls per day Rs. 7/- received of Rs. 14/-, Rs. 77/- and Rs. 63/- respectively of respective ploughs by referring Nagabushanam and Lakshmi Narasimha Rao in joint possession and enjoyment by only cultivation of the land. It also belies Ex. B.6 affidavit contents of Ibrahimpatnam land sold prior to 1944 and falsifies the so-called partition of 1944; for had it been true, the question of their joint possession and enjoyment later of these lands, if once partition affected, does not arise. Further, Ex. A.19 is the Ek sal (one year lease) fasli 1355 for lease amount of Rs. 460/- by lease letter dated 10.06.1948 executed by the tenant Malnidi Pichaiah for the land of Ac.8.93 cents in D. No. 31 of Kotikalpudi village jointly in the names of Nagabushanam and Lakshmi Narasimha Rao by referring them as Inamdars, which show even by 1948, Kotikalpudi land not only sold, but also not divided in showing it is another joint possession and enjoyment and jointly cultivating through tenants. Similarly, Ex. A.19 is substantiating from Ex. Similarly, Ex. A.19 is substantiating from Ex. A.15 registered notice dated 18.12.1950 issued by Nagabushanam for the said land to vacate without raising any crop by 31.03.1951 of the lease period expired and the notice was dated 18.12.1950, in showing the land in their joint possession and enjoyment even by then and under cultivation even by then, which belies so-called oral partition of 1944 and also belies the said version as well as the alleged sale of land of Kotikalpudi prior to 1944. Further, Ex. A.20 is for selfsame land of Kotikalpudi, D. No. 31, Ac.8.93 cents for fasli 1354 leased out by two brothers Nagabushanam and Lakshmi Narasimha Rao to Edduri Sitaramaiah, who executed Ek sal lease letter dated 29.06.1944 for annual rent of 450/- and that also belies the so-called oral partition in 1944 and the alleged sale of Kotikalpudi prior that even. Apart from it Ex. A.21 is the letter dated 08.06.1950 executed by Patchala Laxminarayana addressing Nagabushanam that he was going to purchase the land belongs to Nagabushanam and Lakshmi Narasimha Rao of Ac.1.80 cents in D. No. 260/3 if the offer for sale for Rs. 25,000/- to say Elaprolu land also not sold prior to 1944, much less, the alleged partition of 1944 false for the same even in joint possession and enjoyment of the two brothers by 1950. Ex. A.22 is one year lease letter dated 12.6.1947 executed by Pagadala Atchaiah in the said Kotikalpudi land of D. No. 31 Ac.8.93 cents for fasli 1357 for lease amount of Rs. 525/- referring as jointly belongs to Nagabushanam and his brother Lakshmi Narasimha Rao. Similarly, Ex. A.24 one year lease letter executed by Malnidi Pichaiah for the said land for fasli 1362 on land of Rs. 400/- per annum with chillies and other products of the land and another annual lease executed by said Malnidi Pichaiah Ex. A.26 dated 27.05.1953 for the Kotikalpudi of D. No. 31 for fasli 1363 on payment of annual rent of Rs. 600/-in favour of Nagabushanam and Lakshmi Narasimha Rao referring as joint Inamdars, which also falsifies the said oral partition of 1944 and DWs. 1 and 2's evidence and Ex. B.6 affidavit Para 2 contents of alleged oral partition and sale of the land at Kotikalpudi and other villages prior to that. Further, Ex. 600/-in favour of Nagabushanam and Lakshmi Narasimha Rao referring as joint Inamdars, which also falsifies the said oral partition of 1944 and DWs. 1 and 2's evidence and Ex. B.6 affidavit Para 2 contents of alleged oral partition and sale of the land at Kotikalpudi and other villages prior to that. Further, Ex. A.23 is the one year lease letter dated 11.06.1948 executed by Damerla Bhasker Rao for fasli 1358 for the land of Ac.6.16 cents in D. No. 2/2 of annual land of Rs. 125/- by referring as jointly belongs to Nagabushanam and Lakshmi Narasimha Rao and Ex. A.14 is the registered notice issued by Nagabushanam to said tenant Damerla Bhasker Rao for the said land by referring as jointly belongs to him and by his brother Laxmi Narasimha Rao saying the annual lease of fasli 1358 and that was expired by 31.03.1949 and not to raise any crops but vacate thereafter. It is to say the genuineness and probative value of Exs. A.12 and A.13 recitals not in dispute as well as the lease letters and the letters and notices covered by Exs. A.14 to 28 supra, which all belying the Ex. B.6 affidavit contents of Sadu Ramakrishnaiah, so also the evidence of defendant DW1 and DW2-Subrahmanyam, including of alleged oral partition of 1944 and referring there in falsely as if but for the land of Rayanpadu, Velagaleru and Yerrupalem house covered by items 2, 4 and 7 of the plaint schedule properties and other properties of other villages sold prior to 1944 by the two brothers and their father jointly. The other evidence of in Velagaleru out of the land of Ac.4.11 cents or so, Ac.2.00 and odd acquired by the Government vide Ex. B.7-proceedings or so and out of the remaining Ac.2.23, Ac.1.04 sold by the defendant and the other Ac.1.19 cts as on date is in the possession and enjoyment of the plaintiffs that no way speaks partition, much less in the year, 1944. So also for Rayanpadu land of Ac.17.92 cents what all it speaks is from the litigation run by the defendant through his son-in-law-Sadu Gopal as also observed by the Courts, particularly tenancy Tribunal in Exs. So also for Rayanpadu land of Ac.17.92 cents what all it speaks is from the litigation run by the defendant through his son-in-law-Sadu Gopal as also observed by the Courts, particularly tenancy Tribunal in Exs. A.3 to A.5 supra of Sadu Gopal is the son-in-law of the defendant set up the tenancy and run the litigation and it is later after its finalization delivered the property through Court that was taken that does not mean there was actual partition by meets and bounds, but for to say by the understanding the western side in enjoyment of Nagabushanam and the eastern of the defendant-Lakshmi Narasimha Rao and what the plaintiffs taken possession through Court is not from actual division by meets and bounds on land for the reasons referred supra in answering applications positively in favour of the appellants and it shows there was no any oral partition even of the plaint schedule items 2, 4 and 7 much less in the year 1944 and that is also belying as discussed supra including from the contents of Ex. A.8-letter of the defendant dated 25.12.1959 in asking Nagabushanam to collect the land from Chalasani Venkateswarlu of Ibrahimpatnam land and cause survey the land of Rayanpadu and collect rent from Gopalakrishnaiah which he could not. Further Ex. B.10 is the order of the Land Reforms Tribunal, Khammam, dated 28.06.1977 in C.C. No. 540/MDR from the declaration given by the defendant-Lakshmi Narasimha Rao under Section 8(1) of the APLR (CAH) Act, 1973 on behalf of his family unit and it is referred as declarant was absent and verification report deposed no dependency and his family unit consisting of eight members - viz., declarant, his wife, minor daughters and three minor sons besides two major sons separate units and the land shown at Jamalapuram, Kesireddypally, Pedagapavaram besides that Survey No. 342/2, Velagaleru Ac.2.04 cents. He did not mention any sub-division of the land if at all sub-divided by then but for tentatively shown is undivided half share out of total extent of Ac.4.23 cts for the Ac.2.04 cents. Further, there is no reference of the land of item 2 of plaint schedule of Rayanpadu in Sy. No. 77. It is not even his case that he did not get any property of Rayanapadu. Further, there is no reference of the land of item 2 of plaint schedule of Rayanpadu in Sy. No. 77. It is not even his case that he did not get any property of Rayanapadu. If really, there was actual partition he could have referred for the Velagaleru, the part on which side out of the total extent rather vaguely referring by mentioning the full survey number of 4.00 and add only as if for Ac.2.00 and add and by not having mentioned Rayanpadu Village half share in the land of Ac.17.92 cents in Survey No. 77 by suppression of the same for the reasons better known and the declaration of his two major sons units whether given separately, if at all, not even filed as to what was shown in their declaration for any of the properties including as to know undivided share in item 6 of the plaint schedule property shown or not. Ex. B.11 and B.12 levy paddy receipts of 1974-75 individually in the name of Lakshmi Narasimha Rao and Nagabushanam two brothers; no way improve their case for nothing there from to cull out as to any separate possession and enjoyment by partition. There is nothing to be culled out even of any alleged partition from Ex. A.13-rough sketch of the Rayanpadu land of Ac.17.92 cents in Survey No. 77, there is no stamp or seal of the person who prepared if it is officially and the source and it is not even survey and field measurement book copy of that Survey No. 77, much less, by showing with sub divisions if any. Similar is the case from Ex. B.14-LRAT letter/order dated 11.03.1978 of Cheedella Nagabushanam referring ancestral property only Ac.2.04 cents and one Ac.5.38 cents without showing any other lands and those thus no way helpful to the defendant's contention, much less to say any oral partition in the year, 1944. 16(b)(ix). Therefore, so far as the items 2, 4 and 7 of plaint schedule, there was no any partition as contended by the defendant from the above evidence on record. Even coming to the additional documents filed by the defendant received as additional evidence and referred as Exs. B.15 to B.22 from what is discussed supra, there is nothing there from to substantiate the contention of the defendant of the alleged oral partition of 1944. Even coming to the additional documents filed by the defendant received as additional evidence and referred as Exs. B.15 to B.22 from what is discussed supra, there is nothing there from to substantiate the contention of the defendant of the alleged oral partition of 1944. Any taking of possession and enjoyment continuously later is not a case of actual partition by meets and bounds, much less by taking consideration of good or bad qualities, much less pending suit to consider even as worth subsequent event. 16(b)(x). Thus, the items 2, 4 and 7 of the plaint schedule are though, otherwise liable to the partitioned; "(i) In so far as item 4 of the plaint schedule property of Yerrupalem ancestral house, it is no doubt from the evidence of plaintiffs witnesses of separate portions under occupation among it, and the portion taken for enjoyment of the plaintiffs is in occupation of tenant. Once the plaintiffs not disputed same, it even no way by partition and that too when not in consideration of good and bad qualities, but continuing in enjoyment and thus it is otherwise even liable to be partitioned, since taken into consideration of half extent therein with separate enjoyment, the same require no separate division. (ii) Like so, for the Velagaleru land since what is remained Ac.1.19 and add by allotting to the share of plaintiffs under equities after what is acquired out of the land and after what the defendant sold, that remained and in so allotting. (ii) Like so, for the Velagaleru land since what is remained Ac.1.19 and add by allotting to the share of plaintiffs under equities after what is acquired out of the land and after what the defendant sold, that remained and in so allotting. (iii) Apart from it, coming to Rayanpadu land Ac.17.92 cents what is reflected from the record is there is taking up possession of the southern half by Nagabushanam family members that is the plaintiffs and it is not even during the life time of Nagabushanam, but later and that too, after finalization of the Court litigation to defendant-Lakshmi Narasimha Rao, son-in-law Sadu Gopal and Nagabushanam regarding the tenancy that went against said Sadu Gopal and through Court that is not even by any order of the Court by division as per meets and bounds, but for tentatively arranged by them to take western half Ac.8.96 cents by the plaintiffs branch and eastern Ac.8.96 cents by the defendant-Lakshmi Narasimha Rao and what was taken in not even on exact measurement by the sub division and demarcation, but for on record at best by paper and it is required to be measured and demarcated through commissioner as arranged by them of western half Ac.8.96 cents to the plaintiffs branch and eastern Ac.8.96 cents to the defendant and any excess in occupation of the defendant, the Commissioner to deliver the same to the plaintiffs by put them in possession are entitled to work out as per the preliminary decree for filing application." 16(b)(xi). From this, coming to the remaining extent out of the items 1, 3, 5 and 6 of the plaint schedule; 16(b)(xi)(i). So far as the item 5 of the plaint schedule concerned, though it is the claim of the plaintiffs, which is also part of the family properties in view of the contest by the defendant right from the written statement of the same belongs to Nagabushanam purchased with his own accusations being the government teacher and also exhibited Ex. B.8-sale deed No. 125/23.03.1961 showing Nagabushanam purchased for Rs. 6,000/-from M.Y.N. Narayana @ Subramanyajulu of Yerrupalem of the lands total Ac.5.16 cents in Sy. No. 171, 173, 174, 176, 187, 188, 189, 190 and 191. B.8-sale deed No. 125/23.03.1961 showing Nagabushanam purchased for Rs. 6,000/-from M.Y.N. Narayana @ Subramanyajulu of Yerrupalem of the lands total Ac.5.16 cents in Sy. No. 171, 173, 174, 176, 187, 188, 189, 190 and 191. The said evidence of the defendant in not claiming any right and tantamount to relinquishment by the branch of the defendant-Lakshmi Narasimha Rao and there is nothing to partition in the said property since the defendant admits categorically despite the contest by the plaintiffs as joint, that he has nothing to do and it is only that of Nagabushanam and the plaintiffs and in their possession and enjoyment to take the same and it no way requires any division or partition. 16(b)(xi)(ii). Now coming to Item 3 of the plaint schedule, which is claimed as part of joint family property, admittedly it was the government allotment in favour of the defendant-Lakshmi Narasimha Rao and on his application for allotment for value and equally Nagabushanam applied and was not allotted as also admitted by the 1stplaintiff-P.W.1 and as such from the evidence on record shows Nagabushanam in management so also the defendant-Lakshmi Narasimha Rao and they are taking the rent from vast properties and enjoying the rent even the properties kept joint having been sharing the incomes, this item cannot be impressed into the joint family properties, much less to say the acquisition is with family nucleus. 16(b)(xi)(iii). Now coming to Item 6 of the plaint schedule-two shops viz., shop No. 50 - fertilizer shop situated at Madhira and shop No. 61 - fertilizer shop situated at Yerrupalem village of Madhira Taluk concerned, the claim of defendant is that he is doing business of his own as proprietor of the shop situated at Yerrupalem village with his investment of Rs. 50,000/- and also in partnership with others of the shop situated at Madhira village with investment of Rs. 20,000 to 30,000/-for his 1/3rd share and thus plaintiffs are nothing to do with and he contends that the plaintiffs claim of said investment is out of the joint family funds and it is a joint family business is untenable and unlike other properties, no presumption can be drawn for business as of joint family-vide the three Judge Bench expression of the Apex Court in G.Narayana Raju v. G. Chama Raju (supra). 16(b)(xi)(iii)(a). 16(b)(xi)(iii)(a). However, surprisingly, it is not whispered either in his written statement or in his cross examination of witnesses of plaintiffs or in his evidence and of his witnesses, if any of the shops are not in the site belongs to the joint family and not even whispered of it is fallen to his share in the alleged oral partition of 1944 and he did not file any partnership accounts and partnership deed and its dissolution if any, to know as to what is his investment and with what licenses as required and in whose names and when and how many joined as partners and with what proof of respective investment and means to secure and also share of each and how long continued and as to still continues, which are even material, but for said vague pleas in this regard from his side, there is nothing in positive by any evidence to give any credence. No doubt, there is no discharge of initial burden of plaintiffs as to the shops are part of joint family property. 16(b)(xi)(iii)(b). No doubt, it is not the case of even Plaintiffs, that either Nagabushanam or the Plaintiffs ever participated in any of the fertilizer business of the two places covered by the two shops, much less saying specifically as in ancestral family site or premises the business is running, but for general claim of the business as Item-6 of plaint schedule in the two shops at Madhira and Yerrupalem - even to place reliance on the proposition of Purna Bai v. Ranchoddas (supra) in holding when members of the joint family by their joint labour do the business and acquire properties, the properties would be of joint family properties, to say such business is of the joint family and not of any member of it. But for to say from the expression of the Apex Court while sitting in appeal against in Madanlal v. Yogabai (supra) holding that the business carried by joint family, even any partnership deeds of the business entered into between different members of the family in different combinations would be of no proof of separation or of theirs. 16(b)(xi)(iii)(c). The so called oral partition of 1944 as discussed supra is false and then only thing to consider is sufficiency of nucleus and management of the properties by defendant, if any. 16(b)(xi)(iii)(c). The so called oral partition of 1944 as discussed supra is false and then only thing to consider is sufficiency of nucleus and management of the properties by defendant, if any. For that also as discussed supra, there is no proof from plaintiffs of management of all joint family properties by the defendant alone and with that nucleus he started the business; even he claims with his own exertions the business he established either with others as partner or own. In fact, he did not file even a single record including from the additional document filed by him marked as Exs. B.15 to B.20 referred supra and even from Exs. B.1 to B.14 discussed supra, in support of such contest. 16(b)(xi)(iii)(d). Whereas the evidence on record including from Ex. A.7-letter dated 17.07.1951 written by defendant addressed to Nagabushanam-his brother of he received from the tenant, M. Kondaiah of Ibrahimpatnam on 21.03.1956 Rs. 600/- out of the rent payable by the tenant for the lands. It shows the defendant also receiving joint family income and not by Nagabushanam alone and though the properties are under management of Nagabushanam not exclusive, but also from document referred supra jointly by Nagabushanam and Lakshmi Narasimha Rao, as lease deeds also executed for both by these respective tenants in referring as joint owners to pay the rents and from the evidence on record including of plaintiffs' witness for some of the lands including from Item 4 and 7 of the plaint schedule supra, the rents were respectively paying to the defendant and Nagabushanam by the tenants. It shows they were sharing the income/rents of the properties and nothing exclusively in the defendant's management for accounting or for treating any acquisitions or investments in business by defendant as part of joint family property, for its liability for partition. 16(b)(xi)(iii)(e). Apart from it, there is admission by P.W.1 of the defendant was also doing business in sale of cloth and worked as press reporter and was doing civil contracts, to say he got other means also and not with no avocation or in exclusive management of all joint family properties by realizing its income by him alone, much less as the only source of income to treat any acquisitions as of joint family for plaintiffs also, but for to say between the defendant and his children from the above. Thus, the plaintiffs are not entitled to any share in the Item-6 of plaint schedule from defendant, much less accounting of any profits thereon 16(b)(xi)(iv). So far as what is remained of the Item No. 1-vacant site of 1200 square yards, plot Nos. 10 & 11-situated at Burhanpuram area of Khammam town, his contention is also as his self-exertion and acquired with own funds for a consideration of Rs. 1,000/- purchased in the year, 1950 under registered sale deed which is his exclusive property and not with any joint exertions of him and Nagabushanam, much less with any joint family funds or nucleus and by disputing the so called contribution by Nagabushanam of Rs. 500/- as alleged in the disputed Ex. A9 will and Ex. A2 entry in Ex. A1 book. In fact, as referred supra there are two documents besides the oral evidence of plaintiff-P.W.1 to the claim of joint purchase of item 1 of the plaint schedule by the defendant and Nagabushanam. No doubt plaintiffs cannot claim the same as joint family property by approbate or reprobate as per the propositions discussed supra; apart from the same cannot be claimed as joint family property of defendant and Nagabhushanam for the properties of joint family in their joint enjoyment they were managing and sharing the rents etc., and apart from that means, defendant also was having other means to purchase; equally by Nagabhushanam of even date under Ex. B.9 sale in the name of 1st plaintiff admittedly. Leave about the other inconsistency, as to Nagabushanam no doubt happened to be a government servant, sale deed obtained allegedly for the benefit of both benami or as part of joint property to treat in the name of defendant-Lakshmi Narasimha Rao or Lakshmi Narasimha Rao with some malice obtained the sale behind the back of Nagabushanam by setting up animus there from as his own. The suit filed was on 01.05.1984. The sale deed is admittedly of the year 1950 to say more than 12 years prior to the date of death of Nagabushanam; leave about long prior to the filing of the suit. The suit filed was on 01.05.1984. The sale deed is admittedly of the year 1950 to say more than 12 years prior to the date of death of Nagabushanam; leave about long prior to the filing of the suit. In fact, even in the life time of Nagabushanam, he did not issue any notice demanding for giving of his joint half share even from plaintiffs case, Nagabushanam was demanding and the defendant failed to comply by postponing and Nagabushanam even very well knew equally by the 1st plaintiff of the sale deed obtained by the defendant in his name with recitals as his own and with his consideration and for his benefit, to say there is animus possessandi and with adverse possession against Nagabushanam and his family members as per the expressions referred(supra) with neck, nec calm and nec precaria. Even to say, any Foundation laid and bhumi puja conducted, there is no evidence, but for the inconsistent version of 1st Plaintiff and the witness in relation to it and to give any credence, no even any municipal approval obtained much less any blue print plan prepared and any sumuhurtham fixed for such performance and later even to say any acts of possession, no mutation applied and no tax paid and not even applied to municipality to assess in his name for half of it. In so far as the date of sale deed and the recitals of sale deed and consideration of sale deed concerned though those are not also in dispute from plaintiffs, for reasons better known; the defendant-Lakshmi Narasimha Rao in claiming as his own, not even filed the original sale deed with him, much less referred the original sale deed registered number or date. Though it is a registered sale deed and the plaintiffs can obtain registration extract from the Sub Registrar and file for its admissibility as public document and undisputedly plaintiffs also not asked for the particulars or production of the document, much less obtained and filed any certified copy; though the document and the recitals therein are material and to unfold the truth, it could have been filed without asking to file. No doubt, its non-filing no way leads any adverse inference against the defendant as a circumstance to appreciate, for the contents not even in dispute by plaintiffs. No doubt, its non-filing no way leads any adverse inference against the defendant as a circumstance to appreciate, for the contents not even in dispute by plaintiffs. It is in the peculiar facts of the case even from the very say of the obtaining of the sale deed from the purchase by defendant in his name from the so called part of contribution by Nagabushanam and enjoyment by the defendant in his own and even for demands not transferring and for saying he was passing over in saying to give with no worry, it is unbelievable for not even issued any notice to give share therein by referring as joint property or part of joint family property with knowledge about the sale deed in the name of the defendant and is in exclusive enjoyment as owner with animus possessandi. No doubt, for the person who claims adverse possession, there are no equities to work in his favour but for to prove the same either from his evidence or by relying upon by the evidence of opposite side in his favour to substantiate his contention. 16(b)(xi)(v). Here before discussing further, it is just to consider the relevancy and admissibility of Ex. A.9 and Ex. A.2 in Ex. A.1. So far as Ex. A.9 so-called Will executed by Nagabushanam on 02.12.1983 before his death testate on 09.01.1984 is admittedly an unregistered Will. Undisputedly, from the written statement of the defendant, he categorically disputed the execution of the so-called Will by Nagabushanam and the recitals therein; though he did not specifically dispute correctness of Ex. A.1-accounts maintained by Nagabushanam, but for Ex. A.2 entry therein. From this apart from specific denial of Ex. A.9-Will in the written statement of Lakshmi Narasimha Rao and from the Will is not proved as required under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act by examination of at least one of the attestor of due execution and attestation read with Section 3 of the Transport of Property Act as per the mandatory requirements and not even the case of plaintiffs that the attestors and scribe are not alive and there is no exception for their non examination despite specific denial in proof of due execution and attestation as well as the contents, the contents cannot be looked into, including for any even collateral purpose, as per the propositions discussed supra. Further once, genuineness of Will is questioned, the other evidence required is in discharge of the duty of propounder to dispel the surroundings suspicion circumstances, if any. In the absence of attesting witnesses (died or out of reach) proof of Will is in the manner indicated by Section 68 and not even under Sections 69 & 71 of the Evidence Act and also by proof of the hand writing of the said attesting witnesses on signature of the person executing the Will and for a Will besides showing the Will is the product of free mind of the testator by dispelling the suspicious circumstances surroundings the Will by the profounder of it. Therefore, Ex. A.9-Will in this case for no even an attesting witness examined and no even foundation laid on any of the attesting witnesses died or out of reach or their whereabouts are not known and no steps even taken to prove the handwriting of the attestor and the executant from the person acquainted with as required by law, much less by cause summon through Court and for the mandatory requirements not complied with the proof of the Will execution and attestation leave about proving its genuineness and the probate value, even from the decisions, the collateral purposes referred is other than for Will and even the Kerala High Court referred to the expressions of other High Courts clearly laid down the correct law of collateral purpose is unknown to the Wills among the compulsory attestable documents without proof of due execution and attestation to go through the contents of the Will, Ex. A.9-Will contents cannot be looked into for any purpose, so also any evidence brought on record with reference to the contents for its inadmissibility even for collateral purpose from the Will not proved as required by law under Section 3 of the Transfer of Property Act read with 68 to 71 of the Evidence Act and Section 63 of the Indian Succession Act. 16(b)(xi)(vi). Once, Ex. A.9 cannot be looked into so also the evidence in relation there to for any purpose, there remained the claim relating to the item 1 of the plaintiff schedule in saying joint acquisition as claimed by the plaintiffs for equal share to Nagabushanam representing by plaintiffs with Lakshmi Narasimha Rao-defendant which is Ex. A.2 entry in Ex. A.1 account book. A.9 cannot be looked into so also the evidence in relation there to for any purpose, there remained the claim relating to the item 1 of the plaintiff schedule in saying joint acquisition as claimed by the plaintiffs for equal share to Nagabushanam representing by plaintiffs with Lakshmi Narasimha Rao-defendant which is Ex. A.2 entry in Ex. A.1 account book. In this regard as discussed in the previous paras supra; the same is admissible under Sections 11, 13, 32 and 34 of the Evidence Act. In this regard, what P.W.1 deposed in the chief-examination is her husband bargained item 1 of the plaint schedule 1200 sq.yds for Rs. 1,000/- from Godulabanda Satyanarayana and of which paid Rs. 500/- and defendant obtained the sale deed, in the absence of her husband and when he questioned, defendant promised to give his share saying all other properties are also joint and her husband used to write diary, which is Ex. A.1, wherein Ex. A.2 is the entry showing said payment of Rs. 500/- by her husband to the defendant. If that is the version, the claim is not against defendant, but for against the vendor of the site to whom the amount if paid as also indicating from Ex. A.2 entry for nothing to show as paid to defendant. It is suffice to say indefeasible title of defendant over the site. Further even in the cross-examination she deposed that after the year, 1975 disputes arose between her husband and defendant regarding settlement of accounts and also regarding the vacant site in item 1 of plaint schedule. She deposed that the southern plot of it was purchased by one Seetha Ramaiah, which is South of the Item 1 of the plaint schedule and that southern plot purchased by Seetha Ramaiah also took place at one time and other plot was 480 sq.yds, which later purchased by them as adjacent to item 1 of the plaint schedule and it was registered in her name, though her husband paid the amount and it is her-self acquired property and not joint family property. She further deposed that defendant promised to execute gift deed in favour of her husband for the share in Item 1 of the plaint schedule in order to avoid stamp duty. There is no whisper regarding Exs. A.1 and A.2. She further deposed that defendant promised to execute gift deed in favour of her husband for the share in Item 1 of the plaint schedule in order to avoid stamp duty. There is no whisper regarding Exs. A.1 and A.2. She deposed that three years prior to her evidence, they constructed house in 480 sq. yards purchased in her name from Seetha Ramaiah(covered by Ex. B.9). The recitals of Ex. B.9 at the cost of repetition read it was the sale deed for 480 sq. yards for Rs. 428/- and 9 annas and it is mentioned that out of total extent of 1200 sq. yards bearing plot Nos. 9 and 10 of Burhanpuram, Khammam, the sale deed was executed by Hari Lalithamba W/o. Seetha Ramaiah in favour of P.W.1-Cheedella Padmavathi, W/o. Nagabushanam and it refers the source of title of the vendor that she got absolute rights by virtue of her purchase under sale deed dated 18.04.1950, document No. 325/50 executed by Yeedugugantla Satyanarayana of Bodalabonda and described in the boundaries: East: Referred as Government road, west: Vacant land; south: land sold to Devekonda Anjaneyulu and North: Vacant site belongs to Cheedella Lakshmi Narasimha Rao (defendant). It is the document, where her husband was the attestor and even from her say her husband purchased and the sale deed obtained in favour of her, her husband being vendee benami in her name therefrom, being conscious in referring the boundary holders, had he really got half share refer so foolishly as the vacant site of the defendant-i.e. North: Vacant site belongs to Cheedella Lakshmi Narasimha Rao (defendant), instead saying as the vacant site belongs to both the brothers, though it was the vendor to execute, he being a government teacher and it was on same day the defendant obtained another sale deed, without knowing and without reading, his attesting even does not arise. The same is admissible as per the discussion in the previous paras supra with reference to the settled expressions on the boundary recitals reference. From the above evidence, Ex. B.9-document the property is to the South of Item 1 of the plaint schedule. From which, it is also co-relates in referring the boundary schedule of Ex. B.9 northern boundary as vacant site. From the above evidence, Ex. B.9-document the property is to the South of Item 1 of the plaint schedule. From which, it is also co-relates in referring the boundary schedule of Ex. B.9 northern boundary as vacant site. In fact, it is referred instead of vacant site belongs to them as in the name of Lakshmi Narasimha Rao and the sale deed undisputedly stands in the name of Lakshmi Narasimha Rao. No doubt, the document was not confronted to PW1 who is the vendee benami. However, even it is otherwise admissible and relevant to use against the plaintiffs, though as a weak piece, equally from the Ex. A2 entry in Ex. A1 book and even taken the said Ex. A2 entry with more probative value and for arguments sake, proved as joint purchase, there is from the evidence disputes with the demands from, 1975 for division of half share therein and to execute conveyance and not complied with, leave about the conduct of 1stplaintiffs and her husband so unnatural and improbable to keep quiet, it is suffice to say they got full knowledge of Lakshmi Narasimha Rao's animus possessandi from the very of sale deed, to say item 1 of the plaint schedule sale deed standing in the name of the defendant also dated 18.04.1950, if not few days before to it of April ,1950 as her evidence speaks both sales on same day. The suit was filed on 01.05.1984 about so many years after the said deed, without any written notice or written demands for execution of deed in favour of her husband for the half portion in item 1 of the plaint schedule, that too by referring in the sale deed-Ex. B.9 the northern boundary as the vacant site of the defendant, which is undisputedly item 1 of the plaint schedule. It is thus a clear case for saying the defendant perfected title otherwise by adverse possession, for not co-owners and ouster, but adverse possession among alleged joint purchasers that too with knowledge from the very day even as per Ex. B9 sale deed recitals of northern boundary. 16(b)(xi)(vii). Thus, even the Ex. A.1 shows the account book started maintaining from June, 1946 from the first entry regarding receiving of lease part of amount towards Rayanpadu lands and of entry dated 04.06.1946 of Kotikalpudi land and another entry of payment of Rs. B9 sale deed recitals of northern boundary. 16(b)(xi)(vii). Thus, even the Ex. A.1 shows the account book started maintaining from June, 1946 from the first entry regarding receiving of lease part of amount towards Rayanpadu lands and of entry dated 04.06.1946 of Kotikalpudi land and another entry of payment of Rs. 900/- of Lakshmi Narasimha Rao for house repairs in 1947 and some entries regarding the lands of the villages fallen due to them from the tenants all these are the only entries of the year, 1946. Coming to the year, 1947 entry dated 21.05.1947 was of advance lease amount of Bandapally Rs. 150/- and there are four more entries of the year only up to June, 1947 including Trilochnapuram lease amount and Kotikalpudi lease amount and of Rayanpadu. Coming to the year, 1948 it is commencing from entry of April, 1948 of amount paid to Lakshmi Narasimha Rao by tenant Makalu Venkaiah of Trilochnapuram and another amount by Ganapati Venkaiah and two more entries regarding Kotikalpudi lease lands by M. Pichaiah and D. Bhasker Rao. In the year, 1949 there is one entry of M. Pichaiah of Kotikalpudi Village and there are other writings to father-in-law in the year, 1945 two entries of 1945, one of entry of 1946, including from Rayanpadu village, Ibrahimpatnam and Velagaleru lands. Coming to the year, 1949 besides entry made supra, there are three more entries of lease amount due by Damerla Bhasker Rao and M. Pichaiah and for Rayanpadu P. Gopala Krishna. Coming to the year, 1950 on 02.04.1950 lease amount relating to Rayanpadu Village, Elaprolu and Ibrahimpatnam, one entry and for Trilochnapuram, Meka Narayan Rao paid is another entry. Then, the entries of the year, 1951 relating to lease and in the other entries as self Ch. Nagabushanam. There are eight entries of the year, 1949 one entry of 1954 and there is another item joint income and expenditure, commencing from 1954 for so-called three trips expenditure and then self 1950 saying along with Ch. Lakshmi Narasimha Rao (defendant) for the purpose of house plot measuring 600 sq. feet at Mamillagudem in Khammam, an amount of Rs. 500/- paid as my share and there was no date on what date it was paid and to whom whether it is to the vendee from the saying along with Lakshmi Narasimha Rao. Lakshmi Narasimha Rao (defendant) for the purpose of house plot measuring 600 sq. feet at Mamillagudem in Khammam, an amount of Rs. 500/- paid as my share and there was no date on what date it was paid and to whom whether it is to the vendee from the saying along with Lakshmi Narasimha Rao. It also shows discontinuity and not an account book maintained in the regular course of business. Even if that is the case, what P.W.1 deposes of her husband paid 500/- to the defendant is not co-relating. No doubt, oral evidence will not outweigh documentary evidence, but for explaining under Sections 91 and 92 of the Indian Evidence Act. In this background, coming to the probative value of the said entry, as to how far credence can be given to it, that too no date and the next entry date mentioned is annual premium paid to National Star Assurance Company on 22.04.1950 and another entry of the year, 1959. Ex. A.2 entry referred supra is thus not only without date, without mentioned even of whom paid for that to be placed reliance. It is important to mention from the evidence in the cross-examination of P.W.1 at the cost of repetition that, her husband was managing, so also the defendant - the properties and they were taking the income, lease amounts by sharing and incase of any difficulty her husband adjusted and further deposed in the chief-examination, the defendant is working as press reporter that is by the time of her evidence in the year, 1980 and in her further chief examination, deposed that defendant also did fertilizers in Madhira and Yerrupalem in saying that joint family funds. In the cross-examination she deposed that father-in-law of the defendant was one Venkatappaiah by the time of marriage of the defendant and death of father of the defendant and Nagabushanam, the defendant was staying at their house at Warangal and they were taking care of. In fact few days after marriage of defendant, their father died undisputedly. She deposed about the defendant did petty business after he failed for 4 or 5 times intermediate and he was bringing cloth from Madras and used to sell. From this, there is nothing to show defendant only managing the joint family properties and releasing the income to say any acquisition by the defendant is with joint family nucleus. She deposed about the defendant did petty business after he failed for 4 or 5 times intermediate and he was bringing cloth from Madras and used to sell. From this, there is nothing to show defendant only managing the joint family properties and releasing the income to say any acquisition by the defendant is with joint family nucleus. That too, while saying by her of he was doing some petty business after failure in Intermediate more than four times after his marriage. In this background and that too from this entry saying along with Lakshmi Narasimha Rao, he paid Rs. 500/-. What Ex. A.2 speaks if that is so Nagabushanam could have questioned the vendor in executing the sale deed only in the name of the defendant that too when Ex. A.2 entry says what Nagabushanam paid Rs. 500/- not to the defendant, but to the vendee as it appears and what P.W.1 deposed of, as if paid to defendant is not correct and if half of the amount paid to vendor of the 1200 sq. yards of item 1 of the plaint schedule by Nagabushanam and the other Rs. 500/- paid by Lakshmi Narasimha Rao, admittedly from the said entry nothing reference to any joint family nucleus to indicate only from the means of defendant the question of executing sale deed by the vendor only in the name of Nagabushanam could not have been arisen and even anything done it is only out come of some mischief on the part of the defendant for nothing difficult for Nagabushanam to guise forthwith and could not have as an ordinary prudent person and remains silent but for taken recourse by giving notice and taking recourse against the vendor and Lakshmi Narasimha Rao and the silence on his part and the conduct also off throw speaks volumes. The Ex. A.2 entry is not outcome of even day-to-day maintenance of entries, but item wise with long gap. Further, for the Ex. A.2 entry, there is no other corroborative material and from what is discussed supra, P.W.1 was not claimed even as eye witness to the transaction. 16(b)(xi)(viii). Thereby though Ex. The Ex. A.2 entry is not outcome of even day-to-day maintenance of entries, but item wise with long gap. Further, for the Ex. A.2 entry, there is no other corroborative material and from what is discussed supra, P.W.1 was not claimed even as eye witness to the transaction. 16(b)(xi)(viii). Thereby though Ex. P.2 entry is relevant and admissible for want of corroboration and the other evidence no way corroborates the same, it no way sufficient to hold as proved the factum of the claim of item 1 of the plaint schedule is the property jointly purchased by Nagabushanam and defendant from said entry, that too the conduct of Nagabushanam is against and for not taking any action for the sale deed obtained in 1950 April by the defendant in his name for the entry 1200 sq. yards even if at all it was as per Ex. A.2 entry jointly purchased by both, Nagabushanam could have issued any legal notice or filed any criminal case or initiated civil proceedings for setting aside sale deed or for declaration of half joint rights therein and for division and having kept quiet of the defendant exclusively enjoining as own with animus possessandi, there is adverse possession against the plaintiffs and in favour of the defendant with right by prescription by extinguishing any rights in the property from the defendant with exclusive possession and by mutation in his name and enjoying in his own right to the knowledge of Nagabushanam and plaintiffs from April, 1950 with open, peaceful and uninterrupted possession and there is no material for the plaintiffs to say it was ever enjoyed or any right there in exercised even jointly and the so-called laying of foundation stone from evidence of P.Ws. 1 and 2 as discussed supra is quite unbelievable and also the version of Nagabushanam asked defendant and defendant was allegedly giving Vain promises in so-called keeping quite by Nagabushanam in his life time after the year 1950 till his death in 1984 for more than 34 years. Thus, suffice to say the plaintiffs are not entitled now to claim based on Ex. A.2 entry any share or rights in the item 1 of the plaint schedule. Accordingly, the above points 1, 3-6, 9710 for consideration are answered. Point-11: 16(c). Thus, suffice to say the plaintiffs are not entitled now to claim based on Ex. A.2 entry any share or rights in the item 1 of the plaint schedule. Accordingly, the above points 1, 3-6, 9710 for consideration are answered. Point-11: 16(c). Accordingly and in the result, the appeal (filed by the plaintiffs) is partly allowed (by passing a partly preliminary and partly final decree) with no costs and with no past profits, by setting aside the trial Courts dismissal decree and judgement only to the extent of plaint schedule Item Nos. Point-11: 16(c). Accordingly and in the result, the appeal (filed by the plaintiffs) is partly allowed (by passing a partly preliminary and partly final decree) with no costs and with no past profits, by setting aside the trial Courts dismissal decree and judgement only to the extent of plaint schedule Item Nos. 2, 4, 5 & 7 (though the findings in other respects also) holding that, there was no partition of joint family properties between Nagabushanam (father of plaintiffs 2 to 7) and Lakshmi Narasimha Rao (defendant) after death of their father Radha Krishnaiah of their Mitakshara joint family-cum-coparcenary properties, and the so called oral partition of 1944 set up by the defendant is untrue and thereby the plaintiffs are otherwise entitled for partition of the items 2, 4, 5 and 7 of the plaint schedule; but for to say "(i) In so far as item 4 of the plaint schedule property of Yerrupalem ancestral house, it is from the evidence of plaintiffs witnesses of separate equal half portions under occupation and among it, the portion taken for enjoyment of the plaintiffs is in occupation of tenant and as the plaintiffs are not disputed for same, it even no way by partition, from such consideration of good and bad qualities and from their continuing in enjoyment and possession taken into consideration of the same, it requires no further separate division, but recording of the same allotted to the share of plaintiffs by recording delivery for no more division or separate possession or profits thereon; but for to engross the same on non judicial stamp paper of the final decree to be passed; (ii) Likewise, for the Velagaleru land (item No. 7) since what is remained Ac.1.09 and add by recording of the same allotted to the share of plaintiffs by recording delivery for no more division or separate possession or profits thereon; but for to engross the same on non judicial stamp paper of the final decree to be passed; (iii) Coming to Rayanpadu land Ac.17.92 cents (item No. 2) what is reflected from the record is there is taking possession of the southern half by Nagabushanam family members that is the plaintiffs and it is not even during the life time of Nagabushanam, but later and that too, after finalization of the Court litigation to defendant-Lakshmi Narasimha Rao's son-in-law Sadu Gopal and Nagabushanam regarding the tenancy that went against said Sadu Gopal and through Court that is not even by any order of the Court by division as per meets and bounds, but for tentatively arranged by them to take western half Ac.8.96 cents by the plaintiffs branch and eastern Ac.8.96 cents by the defendant-Lakshmi Narasimha Rao and what was taken in not even on exact measurement by the sub division on demarcation, but for on record at best by paper and it is required to be measured and demarcated through commissioner as arranged by them of western half Ac.8.96 cents to the plaintiffs branch and eastern Ac.8.96 cents to the defendant and any excess in occupation of the defendant, to hand over by commission to plaintiffs from defendant and his branch and accordingly partly final decree partition decree passed for the western half Ac.8.96 cents to the plaintiffs and by directing the Commissioner (to be named by the trial Court to entrust the warrant by virtue of this direction) to deliver the same to the plaintiffs by put them in possession by measurement and demarcation on field in the final decree petition to be filed and for engrossing the same on non judicial stamp paper of the final decree to be passed; (iv) So far as the item 5 of the plaint schedule concerned, though it is the claim of the plaintiffs, which is also part of the family properties in view of the contest by the defendant of the same belongs to Nagabushanam who purchased with his own acquisitions being the government teacher and also exhibited Ex. B.8-sale deed No. 125/23.03.1961 showing in the name of Nagabushanam as he purchased for Rs. 6,000/-from M.Y.N. Narayana @ Subramanyajulu of Yerrupalem of the lands total Ac.5.16 cents in Sy. No. 171, 173, 174, 176, 187, 188, 189, 190 and 191; said evidence of the defendant in not claiming any right, tantamount to relinquishment by the branch of the defendant-Lakshmi Narasimha Rao and there is nothing to partition in the said property since the defendant admittedly has nothing to do and it is only that of Nagabushanam and the plaintiffs and in their possession and enjoyment to take the same and it no way requires any division or partition, but for recording of the plaintiffs and in their possession and enjoyment; but for to engross the same on non judicial stamp paper of the final decree to be passed; (v) Having regard to the above, with regard to item No. 2, the plaintiffs can apply for final decree for its engrossment on non-judicial stamps for no more division of the property involved, but for any demarcation if at all, to seek from the trial Court and on such division and demarcation to apply for final decree to engross on non-judicial stamps; with regard to item No. 4, the plaintiffs can apply for final decree to engross the same on non-judicial stamps, towards their share; so far as item No. 5, the same belongs to the plaintiffs thereby no division involves but for if at all to cause, engross the same on non-judicial stamps by applying for final decree; and with regard to item No. 7 also apply for final decree to engross on non-judicial stamps." 16(d)(i). Coming to Item 3 of the plaint schedule, admittedly it was the government allotment in favour of the defendant-Lakshmi Narasimha Rao and on his application and for value, this item was not even impressed into the joint family properties and plaintiffs cannot claim for partition and as such the trial Court's decree and judgement in this regard no way requires interference even otherwise; "(ii) Coming to Item 6 of the plaint schedule-two shops viz., shop No. 50-fertilizer shop situated at Madhira and shop No. 61-fertilizer shop situated at Yerrupalem village of Madhira Taluk concerned, the same belongs to the defendant, as such the plaintiffs are not entitled to any share in the Item-6 of plaint schedule from the defendant, much less for partition or accounting or any profits thereon and as such the trial Court's decree and judgement in this regard no way requires interference even otherwise; & (iii) Coming to the Item No. 1-vacant site of 1200 square yards, plot Nos. 10 &11-situated at Burhanpuram area of Khammam town, in the same the defendant acquired title otherwise even and as such the plaintiffs are not entitled to any share in the Item-1 of plaint schedule from the defendant, much less for partition or accounting or any profits thereon and as such the trial Court's decree and judgment in this regard no way requires interference even otherwise. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed." Appendix of Evidence (additional evidence) Documents marked for appellants/plaintiffs Documents marked for respondents/defendants. Ex.A.12 Regd. Sale deed No. 1393-dt.12.06.1951, executed jointly by Nagabushanam and Lakshmi Narasimha Rao and their sons in favour of  one Mandadi Venkayamma; Ex.B.15 Registered sale deed No. 449/1996, dt. 12.03.1996, executed by Plaintiffs for item II of plaint schedule in favour of one B. Tata Rao. Ex.A.13 Regd. Sale deed No. 1204-dt.15.04.195, executed jointly by Nagabhushanam andd Lakshmi Narsimha Rao and their sons in fovour of Jonnalagadda Ramakotaian and patte China Ramaiah Ex.B.16 Regd. Sale deed Nos. 382 & 383/2007, executed by 8 th appellant-wife of late 4 th appellant (4 th Plaintiff), in favour of one J. Durga W/o. Panduranga Vital, Ex.A.14 Regd. Notice dt.10.12.1948 issued by Nagabushanam to Damerto Bhasker Raotenant, Ex.B.17 Writ Petition No. 3897/1996 filed by the appellants against MRO, Vijayawada rural and SHO, Rayanpadu police station, Ex.A.15 Regd. Sale deed Nos. 382 & 383/2007, executed by 8 th appellant-wife of late 4 th appellant (4 th Plaintiff), in favour of one J. Durga W/o. Panduranga Vital, Ex.A.14 Regd. Notice dt.10.12.1948 issued by Nagabushanam to Damerto Bhasker Raotenant, Ex.B.17 Writ Petition No. 3897/1996 filed by the appellants against MRO, Vijayawada rural and SHO, Rayanpadu police station, Ex.A.15 Regd. Notice dt.18.12.1950 issued by Nagabushanam to Mainidi Pichaiah – tenant, Exs.B.18 to B.22 Copy of order in WP No. 3897.1996, dt.17.06.1996, with writ petition, counter and reply, GPA No. 11/1984, dt.08.03.1984 of Sub-registrar Khammam, Ex.A.16 Letter, dated 05.06.1952 with regard to plough joint land, Ex.A.17 Letter, dated 04.06.1952 with regard to plough joint land, Ex.A.18 Letter, dated 05.06.1952 with regard to plough joint land, Ex.A.19 One year lease letter dt.10.06.1948, Ex.A.20 One year lease letter dt.29.06.1944, Ex.A.21 Letter dated, 08.06.1950. Ex.A.22 One year lease letter dt.12.06.1947, Ex.A.23 One year lease letter dt.11.06.1948, Ex.A.24 One year lease letter dt.02.06.1952, Ex.A.25 One year lease letter dt.21.05.1947, Ex.A.26 One year lease letter dt.27.05.1953, Ex.A.27 One year lease letter dt.22.07.1955, Ex.A.28 One year lease letter dt.19.07.1954,