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2024 DIGILAW 348 (AP)

Avula Indira Chittoor v. G Chenchaiah

2024-03-13

VENUTHURUMALLI GOPALA KRISHNA RAO

body2024
COMMON JUDGMENT Venuthurumalli Gopala Krishna Rao, J. - The A.S. No.453 of 2003 is filed by plaintiff against the Decree and Judgment, dated 17.02.2003, passed in O.S. No.278 of 1995 on the file of the Additional Senior Civil Judge,Tirupati. The Plaintiff filed the Suit against the Defendants for claiming the relief of declaration of the plaintiff's title to the schedule property and consequently granting permanent injunction against the defendants and their men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property and for costs. The trial Court decreed the Suit in part, declaring the plaintiff's right and title over the suit schedule property as prayed for but the suit with regard to the relief of permanent injunction is dismissed. The appeal A.S.No.453 of 2003 is filed by the appellant/plaintiff in the said suit questioning the decree and judgment passed by the trial Court insofaras rejecting the relief of permanent injunction is concerned. 2. The A.S. No.613 of 2003 is filed by first defendant against the Decree and Judgment, dated 17.02.2003, passed in O.S. No.278 of 1995 on the file of the Additional Senior Civil Judge, Tirupati. This Appeal i.e., A.S.No.613 of 2003 is filed by the appellant/ first Defendant in the said suit, questioning the decree and judgment passed by the trial Court insofar as decreeing the suit relates to title of the plaintiff. 3. Both the appeals are filed against the judgment dated 17.02.2003 passed in O.S.No.278 of 1995 on the file of the Additional Senior Civil Judge, Tirupati, both the appeals were heard together and they are being disposed of by this common judgment. 4. The parties to the above two appeals are referred to as they were arrayed before the trial Court. 5. The brief averments of the plaint, in O.S. No.278 of 1995, are as follows: (i) One Biswanatha Prasad @ Viswanatha Prasad was the absolute and original owner for the total extent of the land Ac.12.59 cents in S.No.202/3 of Vedanthapuram village accounts of Thummalagunta group, Tirupati Rural Mandal. He was also granted rythwari patta by the then settlement officer, Nellore. The brief averments of the plaint, in O.S. No.278 of 1995, are as follows: (i) One Biswanatha Prasad @ Viswanatha Prasad was the absolute and original owner for the total extent of the land Ac.12.59 cents in S.No.202/3 of Vedanthapuram village accounts of Thummalagunta group, Tirupati Rural Mandal. He was also granted rythwari patta by the then settlement officer, Nellore. The said Biswanatha Prasad along with his second son and fourth son and his daughter namely I.T.Dube, I.N.Dube and Kumari Bhuvaneswari, after receiving valid consideration, executed an agreement of sale dated 31.05.1976 for the total extent of Ac.12.59 cents in favour of one Erraiah @ C.Lakshmipathi, who is the father of the plaintiff and delivered possession to him on the same day. Since then, the said Lakshmipathi had been in possession and enjoyment of the same by raising crops and paying cist to the government. The said Biswanatha Prasad died intestate on 16.10.1978 leaving behind him his second son, fourth son and daughter to succeed to his estate including the plaint schedule property being his self-acquisitions, as he executed a will dated 14.01.1978 in a sound and disposing state of mind to their favour and it was hislast will. The other sons of Biswanatha Prasad have no right, interest, title or possession and enjoyment over the bequeathed properties and thus the legatees under the said will became the absolute owners of the properties left by the deceased Biswanatha Prasad. (ii) After the demise of Biswanatha Prasad, the legatees, I.T.Dube, I.N.Dube and Kumari Bhuvaneswari, as absolute owners and in pursuance of the agreement of sale dated 31.05.1976, executed a registered sale deed to an extent of Ac.5.00 cents on 02.05.1986 with regard to the plaint schedule property in favour of the plaintiff and registered on 27.06.1986, at the request of the plaintiff's father, the original agreement holder dated 31.05.1976 as the plaintiff's father received consideration for his necessities from the plaintiff. The rest of the land covered under the above agreement of sale likewise conveyed by executing and registering the same in favour of Smt C.Munemma, mother of the plaintiff, under two different sale deeds. Ever since the date of purchase, the plaintiff has been in possession and enjoyment of the plaint schedule property with all absolute rights and no one has any manner of right, title, interest and possession whatsoever over the plaint schedule property including the defendants. Ever since the date of purchase, the plaintiff has been in possession and enjoyment of the plaint schedule property with all absolute rights and no one has any manner of right, title, interest and possession whatsoever over the plaint schedule property including the defendants. After purchase of the respective lands, she and her mother approached the then Mandal Revenue Officer of Tirupati Rural Mandal to get their names mutated in the revenue records, but at the intervention of the first defendant with the mutation proceedings, upon false grounds, the revenue authorities refused to mutate the same by giving an endorsement on 18.09.1986, directing the parties to establish their rights in a civil Court. (iii) Defendants 1 to 3 filed caveat and for which, plaintiff gave reply. First defendant set up defendants 2 and 3, who are none other than his brothers-in-law and sent copies of caveat claiming alleged right over a portion of the plaint schedule property. Defendants 2 and 3 being step brothers of the plaintiff, having enemically disposed of towards the plaintiff, taking advantage of the plaintiff being a lady, having no support in the vicinity, having an evil eye over the plaint schedule property, hatched a plan to knock away the same and to have a wrongful gain. Plaintiff reliably learnt that at the active connivance of his brothers-in-law, first defendant illegally brought into existence some sham, nominal, collusive, fraudulent and spurious documents in favour of defendants 4 to 34. While so, on 27.12.1995 at about 9.00 a.m. when the plaintiff with her agricultural labourers while ploughing the agricultural land, to make it fit for raising vegetable crops etc., defendants 1 to 4 along with other defendants trespassed into the plaint schedule land and attempted to object the ploughing operations high handedly, therefore, the plaintiff was constrained to file the suit. 6. The first defendant filed awritten statement by denying the averments mentioned in the plaint and further contended as under: Biswanatha Prasad had four sons namely I.J.Dube, I.T.Dube, I.G.Dube @ B.Gowthamnath, I.N.Dube and one daughter Bhuvaneswari. The said Bhuvaneswari could not be married. The said Biswanatha Prasad died on 16.10.1978 intestate leaving behind his four sons and one daughter. After demise of the said Biswanatha Prasad, all the sons and daughter have been enjoying the said property with absolute rights. The said Bhuvaneswari could not be married. The said Biswanatha Prasad died on 16.10.1978 intestate leaving behind his four sons and one daughter. After demise of the said Biswanatha Prasad, all the sons and daughter have been enjoying the said property with absolute rights. The said Gowthamnath, third son of Biswanath Prasad, executed a registered General Power of Attorney on 25.07.1986 in favour of one D.Venkatachalam, S/o.Venkatarayulu of Karakambadi village, Renigunta Mandal, authorizing him to dispose of his share of property in the suit property. The said Venkatachalam as General Power of Attorney agent of B.Gowthamnath, executed registered sale deed dated 02.08.1986 in favour of first defendant for an extent of Ac.2.52 cents out of Ac.12.59 cents for valid consideration and delivered possession of the said property to him. On 04.08.1986 the first son of Biswanatha Prasad by name I.J.Dube executed a registered General Power of Attorney in favour of one D.Venkatachalam authorizing him to dispose of his share of property in the suit property. The said Venkatachalam as General Power of Attorney agent of I.J.Dube, executed registered sale deed dated 09.08.1986 in favour of first defendant for an extent of Ac.2.53 cents, being 1/5th share of Ac.12.59 cents, for valid consideration and delivered possession of the said property to him. Thus, the first defendant became the absolute owner of Ac.5.05 cents under the above said 2 sale deeds and has been in possession and enjoyment of the same and also mortgaged the said property to Mallamgunta Primary Co operative Society and obtained a loan and the said loan is still subsisting. First defendant sold an extent of Ac.1.50 cents to the third defendant and an extent of Ac.1.00 cents to the second defendant under registered sale deeds for valid consideration and delivered the possession of said properties to them. Defendants 2 and 3 formed approved layout and sold the same to different persons, whose particulars are detailed to the knowledge of the plaintiff. The alleged sale deed in favour of the plaintiff is not true, valid and binding on this defendant sofaras the shares of I.J.Dube and B.Gowthamnath are concerned being the non-alienating coparceners. The first defendant is the son-in-law of said Yerraiah @ C.Lakshmipathi and the defendants 2 and 3 are his brothers-in-law. Plaintiff is not the daughter of the said Lakshmipathi and she has no right, title or possession over the plaint schedule property. The first defendant is the son-in-law of said Yerraiah @ C.Lakshmipathi and the defendants 2 and 3 are his brothers-in-law. Plaintiff is not the daughter of the said Lakshmipathi and she has no right, title or possession over the plaint schedule property. The first defendant also filed additional written statement stating that he has no necessity to hatch up a plan and to knock away the suit schedule property. Plaintiff has been set up by her husband just to harass this defendant and put him to hardship and inconvenience and that plaintiff is not entitled to the relief sought for and prayed the Court to dismiss the suit. 7. The fourth defendant filed a written statement, which was adopted by the defendant Nos.5, 6, 8, 19, 28 and 29, by denying the averments of the plaint and further contended as under: Plaint schedule property originally belonged to Lakshmi Bai, who is none other than the sister of Hanuman Prasad and the said Hanuman Prasad is the father of Biswanatha Prasad. The said Lakshmi Bai got the plaint schedule property and other properties from Sri Swami Hathiramji Mutt, Tirupati. The said Lakshmi Bai had no issues and hence Hanuman Prasad being her brother became absolute owner and was in possession and enjoyment of the said property with absolute right after the death of his sister by name Lakshmi Bai. Thus, the plaint schedule property is ancestral property in nature and not the self-acquired property of Biswanatha Prasad. Fourth defendant purchased an extent of Ac.0.60 cents of land from and out of the total extent of Ac.2.50 cents of land owned by the defendants 2 and 3 herein. Subsequently, he sold the said extent of land under registered sale deeds by dividing the said extents into plots to the defendant Nos.5, 6, 19, 21, 22, 24, 28 and 29 and some others with plots of 35 x 55 each on different dates. The suit is bad for non-joinder of necessary parties, since along with this defendant various others purchased various plots and they are in possession and enjoyment of the same and prayed the Court to dismiss the suit. 8. The suit is bad for non-joinder of necessary parties, since along with this defendant various others purchased various plots and they are in possession and enjoyment of the same and prayed the Court to dismiss the suit. 8. Defendant Nos.7 and 24 filed written statement denying most of the allegations in the plaint and supporting the version of defendant Nos.1 and 4 in all material aspects and further contend as under: The defendant No.7 purchased the written statement schedule property described as A schedule under registered sale deed dated 20.03.1989 from the third defendant for valuable consideration. Defendant No.24 purchased the property described in written statement schedule as B schedule property from Nellore Vijayakumar, S/o.Nellore Gangi Reddy under registered sale deed dated 09.03.1989 for valuable consideration. Thus defendant Nos.7 and 24 are in possession and enjoyment of A and B schedule written statement property, which are part of the plaint schedule property and prayed the Court to dismiss the suit. 9. Defendant No.21 filed a written statement supporting the version of defendant Nos.1 and 4 and further contend as under: The first defendant sold Ac.1.16 cents of land to the third defendant under registered sale deed dated 09.02.1987 for valuable consideration and delivered possession of the same to him, ever since, the third defendant has been in actual possession and enjoyment of the said land, again the first defendant sold another extent of Ac.1.00 cents to the second defendant under a registered sale deed dated 09.02.1987 for valuable consideration and put him in possession of the said property. Subsequently defendants 2 and 3 laid plots in the said land and got approval from TUDA and sold the plots to various parties and put them in possession and enjoyment of their respective plots. Defendant No.21 purchased plot No.9, which is described in the schedule given in the written statement, from Nellore Vijaya Kumar under a duly registered sale deed dated 09.03.1989 for valuable consideration. The said N.Vijaya Kumar, the vendor of this defendant, purchased the property in question under a registered sale deed dated 22.02.1989 for valid consideration from the defendants 2 and 3 and prayed the Court to dismiss the suit with costs. 10. The said N.Vijaya Kumar, the vendor of this defendant, purchased the property in question under a registered sale deed dated 22.02.1989 for valid consideration from the defendants 2 and 3 and prayed the Court to dismiss the suit with costs. 10. Defendant No.34 filed a written statement denying most of the allegations in the plaint and further contended as follows: Defendant No.34 purchased an extent measuring East to West 55 feet and North to South 35 feet in S.No.202/3 under registered sale deed dated 09.03.1989 from the fourth defendant and since then he has been in possession and enjoyment of the said property and prayed the Court to dismiss the suit. 11. Based on the above pleadings, the following issues were settled by the trial Court in O.S. No.278 of 1995. i. Whether the plaintiff has right and title to the plaint schedule property? ii. Whether the plaintiff is entitled for permanent injunction as prayed for? iii. To what relief? 12. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW10 were examined and Ex.A1 to Ex.A99 were marked. On behalf of the Defendants DW1 to DW8 were examined and Ex.B1 to Ex.B31 and Ex.X1 to Ex.X14 were marked. 13. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit in part, declaring the plaintiff's right and title over the suit property as prayed but the suit with regard to the relief of permanent injunction is dismissed,vide its judgment, dated 17.02.2003, against which A.S.No.613 of 2003 is preferred by the first defendant in the Suit questioning the Decree and Judgment passed by the trial Court insofar as granting relief of declaration of title to plaintiff and the plaintiff in the said suit also filed A.S.No.453 of 2003 insofar as rejecting the relief of permanent injunction is concerned. 14. Heard Sri P.Ganga Rami Reddy, learned counsel for plaintiff and Sri Srinivasa Rao Bodduluri, learned senior counsel for defendant No.1. 15. The learned Counsel for the plaintiff i.e., appellant in A.S.No.453 of 2003 would contend that the trial judge came to wrong conclusion in rejecting the relief of permanent injunction. He would further contend that the trial Court failed to appreciate the legal maximum that possession follows title. 15. The learned Counsel for the plaintiff i.e., appellant in A.S.No.453 of 2003 would contend that the trial judge came to wrong conclusion in rejecting the relief of permanent injunction. He would further contend that the trial Court failed to appreciate the legal maximum that possession follows title. He would further contend that the trial judge erred gravely in rejecting the relief of permanent injunction claimed by the plaintiff. He would further contend that the appeal filed by the plaintiff vide A.S.No.453 of 2003 may be allowed by setting aside the order of rejection of permanent injunction passed by the trial Court. 16. Per contra, the learned counsel for first defendant i.e., appellant in AS.613 of 2003 would contend that the trial Court ought to have seen that Ex.A8 will is not produced at the earliest opportunity along with the plaint and it was introduced in the evidence during the course of trial. He would further contend that the plaint schedule property was ancestral property of late Biswanatha Prasad and as such he had no power or authority to execute a will. He would further contend that Ex.A8 will is a fabricated will. He would further contend that the trial Court came to wrong conclusion by granting the relief of declaration of title and the appeal filed by the first defendant in A.S.No.613 of 2003 may be allowed by setting aside the relief of declaration of title granted by the trial Court. 17. Having regard to the pleadings in the suit and the findings recorded by the trial Court and in the light of rival contentions and submissions made by either side before this Court, the following points would arise for determination: i. Whether Ex.A8 will is proved in accordance with law by the plaintiff? ii. Whether the plaintiff is having right and title in the plaint schedule property? iii. Whether the plaintiff is entitled the relief of permanent injunction as prayed in the plaint? iv. Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent? 18. Point No.1 Whether Ex.A8 will is proved in accordance with law by the plaintiff? iii. Whether the plaintiff is entitled the relief of permanent injunction as prayed in the plaint? iv. Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent? 18. Point No.1 Whether Ex.A8 will is proved in accordance with law by the plaintiff? The case of the plaintiff is that her father purchased an extent of Ac.12.59 cents from Biswanatha Prasad under an agreement of sale dated 31.05.1976 and after the death of Biswanatha Prasad, the 2 sons of Biswanatha Prasad i.e., I.T.Dube, I.N.Dube and daughter of Biswanatha Prasad i.e., Bhuvaneswari, executed a sale deed in favour of the plaintiff for an extent of Ac.5.00 cents, out of total extent of Ac.12.59 cents under original of Ex.A13 dated 02.05.1986. She further pleaded that prior to Ex.A13 itself, the vendors of plaintiff handed over the possession of the property to the father of the plaintiff by name C.Lakshmipathi. She further pleaded that she is having right and title over the plaint schedule property. 19. The specific case of the first defendant is that the vendors of the plaintiff are not having any exclusive rights in the plaint schedule property. The first defendant further pleaded that the vendors of the plaintiff are having 1/5th share each in the total extent of Ac.12.59 cents, which belongs to Biswanatha Prasad. The first defendant further pleaded that the said Biswanatha Prasad has not executed any will in favour of his 2 sons by name I.N.Dube, I.T.Dube and daughter Bhuvaneswari. The first defendant is disputing the alleged Ex.A8 will. The contention of the first defendant is that the said will is not at all a genuine will and it is a fabricated will. 20. The law is well settled that the agreement of sale does not confer any title in favour of the father of the plaintiff. It is not the case of the plaintiff that her father obtained sale deed from Biswanatha Prasad. It was argued by the learned counsel for plaintiff that according to the defendant No.1 also Biswanatha Prasad is the original owner of the plaint schedule property. It is not the case of the plaintiff that her father obtained sale deed from Biswanatha Prasad. It was argued by the learned counsel for plaintiff that according to the defendant No.1 also Biswanatha Prasad is the original owner of the plaint schedule property. As per the case of the first defendant, Biswanatha Prasad died intestate on 16.10.1978 leaving behind his four sons by name I.N.Dube, I.T.Dube, I.J.Dube and I.G.Dube @ Gowthamnath and one daughter Bhuvaneswari and after the demise of Biswanatha Prasad all the sons and daughter have been enjoying the said property with absolute rights. He would further contend that the said Biswanatha Prasad died on 16.10.1978 intestate and on 25.07.1986 one of the son of Biswanatha Prasad by name Gowthamnath executed a registered General Power of Attorney in favour of D.Venkatachalam, S/o.D.Venkatarayulu of Karakambadi village and authorized him to dispose of his property i.e., suit property and the said Venkatachalam as a General Power of Attorney of Gowthamnath executed a registered sale deed dated 02.08.1986 under a document bearing No.4603 of 1986 in favour of the first defendant in respect of his share of the property to an extent of Ac.2.52 cents out of Ac.12.59 cents and delivered possession of the said property to him and put him in a separate possession and enjoyment of the same. The learned counsel for first defendant further pleaded that on 04.08.1986 the another son by name I.J.Dube executed a registered General Power of Attorney in favour of the said D.Venkatachalam, S/o.Venkatarayulu of Karakambadi village authorizing him to dispose of his share of property in the suit schedule property and the said Venkatachalam as a registered General Power of Attorney executed a sale deed dated 09.08.1986, which was registered in the registrar office, in favour of the first defendant for an extent of Ac.2.53 cents being his 1/5th share out of Ac.12.59 cents, under a document No.4721 of 1986 for a valid consideration and put him in possession of the same. He further pleaded that the first defendant being the absolute owner of Ac.5.05 cents under the said 2 sale deeds has been in possession and enjoyment of the same and he mortgaged the suit schedule property to Co-operative Society Limited and also obtained a loan and the same is still subsisting. He further pleaded that the first defendant being the absolute owner of Ac.5.05 cents under the said 2 sale deeds has been in possession and enjoyment of the same and he mortgaged the suit schedule property to Co-operative Society Limited and also obtained a loan and the same is still subsisting. In order to prove the case of the first defendant, the registration extract of the sale deeds are filed and marked as Ex.B5 and Ex.B6. Therefore, the burden is on the plaintiff to prove that the plaint schedule property is self-acquired property of Biswanatha Prasad. Admittedly no evidence is placed by the plaintiff to show that the plaint schedule property is self-acquired property of Biswanatha Prasad. Furthermore, Ex.B1 registered release deed obtained by the vendors of the plaintiff clearly goes to show that the total property of Ac.12.59 cents belongs to Biswanatha Prasad is ancestral property and further more Ex.B1 goes to show that the suit schedule property was purchased from out of the ancestral nucleus by Biswanatha Prasad. 21. The claim of the plaintiff is that her vendors got title under Ex.A8 unregistered will. The will is disputing by the defendants. In Ex.A13 sale deed of the plaintiff there is no whisper about the Ex.A8 unregistered will dated 14.01.1978 said to have been executed by Biswanatha Prasad. In Ex.A13 it is not mentioned by the vendors that they are having title by virtue of Ex.A8 unregistered will executed by their father. As stated supra, the will or copy of the will is not at all filed along with the plaint and the original will is filed at the time of trial before the trial Court. Since the Ex.A8 will which is unregistered will is disputed by the defendant No.1, therefore, the duty cast upon the propounder of the will to prove the alleged Ex.A8 will. 22. In order to prove the Ex.A8 will, the plaintiff relied on the evidence of son of one of the attestor in Ex.A8 will. The contention of the plaintiff is that the 2 attestors in Ex.A8 will are no more and died. I have perused the Ex.A8 original alleged will, it is a typed will contains one page. Ex.A8 recitals goes to show that Biswanatha Prasad bequeathed entire Ac.12.59 cents in favour of his 2 sons I.T.Dube and I.N.Dube and his only daughter kumari Bhuvaneswari in equal shares. I have perused the Ex.A8 original alleged will, it is a typed will contains one page. Ex.A8 recitals goes to show that Biswanatha Prasad bequeathed entire Ac.12.59 cents in favour of his 2 sons I.T.Dube and I.N.Dube and his only daughter kumari Bhuvaneswari in equal shares. In the alleged Ex.A8 it was further recited that he is not making any provision for his other 2 sons I.J.Dube and I.G.Dube, the alleged attestors V.Rathnam and C.S.D.Mani signed on the back of alleged Ex.A8 will. The signature of the testator is not there on the back page of the will underneath the signatures of the attestors. There is no mention in Ex.A8 first page that the attestors signed on the back page of Ex.A8 will. PW1 is not having any personal knowledge about the Ex.A8 will. PW2 is none other than the mother of the plaintiff. She is also not having any personal knowledge about the Ex.A8 will. The 2 attestors in Ex.A8 will is not at all examined by the plaintiff. The son of the one of the attestors by name C.S.D.Mani is examined as PW3. Ex.A8 is confronted to him. He identified the signature of his father and he further deposed that his father died in the year 1984 and his father is second attestor in the Ex.A8 will. In cross examination he admits that his father worked in railway department and his father's signatures are available in railway department. To confront the signature of another attestor of the will, the children of another attestor is not at all examined by the plaintiff. The reason for excluding other 2 sons for not giving any shares stated in the alleged will is they married the inter-caste women. The said reason as stated by the testator in the alleged Ex.A8 will is absurd. It is not the case of the testator that he is having enmity with his other 2 sons and they are not attending his welfare and they have not look after him and the said other 2 sons deserted him to his fate. The said reason as stated by the testator in the alleged Ex.A8 will is absurd. It is not the case of the testator that he is having enmity with his other 2 sons and they are not attending his welfare and they have not look after him and the said other 2 sons deserted him to his fate. If the Ex.A8 will is genuine and excluded the 2 sons of Biswanatha Prasad from inheriting the property, it has to be explained why the other 2 sons gave release deeds in respect of other joint family properties to the vendors of the plaintiff in respect of some other property but not plaint schedule property, which are a crucial documents to decide the title of the vendors of the plaintiff in the plaint schedule property and also to decide the genuineness of the will. The other 2 sons I.J.Dube and I.G.Dube have not got any property under the alleged Ex.A8 will. They are disputing the alleged will. Ex.B1 certified copy of registered release deed dated 11.02.1997 executed by Gowthamnath @ I.G.Dube in favour of the beneficiaries under the alleged will by name Bhuwaneswari, I.T.Dube, I.N.Dube by releasing his 1/5th share in the properties of Biswanatha Prasad covered under Ex.A8 will. In the said release deed, obtained by the beneficiaries under the Ex.A8 will, it was recited that Biswanatha Prasad died intestate and Biswanatha Prasad purchased the property from out of his funds which was available after disposing the ancestral property. Ex.B2 and Ex.B3 are the registered documents, those documents clearly go to show that the vendors of the plaintiff are having 1/5th share in the total property of Ac.12.50 cents belongs to Biswanatha Prasad and they are not having exclusive rights of Ac.12.52 cents of the property of Biswanatha Prasad. Furthermore, the registered release deed obtained by the beneficiaries of the will by name I.N.Dube, I.T.Dube and Bhuvaneswari i.e., vendors of plaintiff dated 11.02.1997 goes to show that their father died intestate. As stated supra, the original will is not at all filed along with the plaint by the plaintiff, the same is filed during the course of trial. In the sale deed of the plaintiff Ex.A13, there is no whisper that the source of their title is under Ex.A8 will, therefore there are several circumstances surrounding the alleged execution of Ex.A8 will. 23. In the sale deed of the plaintiff Ex.A13, there is no whisper that the source of their title is under Ex.A8 will, therefore there are several circumstances surrounding the alleged execution of Ex.A8 will. 23. PW4, who is the none other than the son of Biswanatha Prasad,is one of the beneficiary under the alleged Ex.A8 will. There is no mention in the plaint that the PW4 is also present at the time of alleged execution of Ex.A8 will. The signature of the PW4 is not at all there in Ex.A8 by recognizing his presence at the time of alleged Ex.A8 will. More over he is one of the beneficiary under the alleged Ex.A8 will. He deposed in his evidence that his father executed a will during his life time on 14.01.1978 under Ex.A8 and his father was in a sound and disposing state of mind and to the dictation of his father, a private job typist, typed Ex.A8 at their house and at that time himself, his another brother I.T.Dube, sister Bhuvaneswari and 2 attestors were present. The alleged Ex.A8 does not contain the signatures of the I.T.Dube and I.N.Dube and Bhuwaneswari. He further deposed in his evidence that at the instance of Lakshmipathi, though it is a self-acquired property of their father, himself, his brother I.T.Dube and his sister signed in the alleged agreement dated 31.05.1976, even by that time Lakshmipathi neither asked nor they revealed about his other 2 brothers. As stated supra, the alleged agreement of sale did not come into light. The alleged agreement of sale is not at all filed by the plaintiff. He further admitted that the attestors in Ex.A8 were accidentally present on that day and they are the friends of his father, he further admits that the release deed was executed by one of the brother I.G.Dube @ Gouthamnath in favour of himself, his brother I.T.Dube and sister Bhuwaneswari in respect of properties situated at Vellore and Madras on 11.02.1999 under Ex.B1 and he relinquished his 1/5th share under the said document and Ex.B1 property is also included in Ex.A8. In cross examination, he further admits that to his knowledge his other 2 brothers I.J.Dube and I.G.Dube executed sale deeds in favour of first defendant in their respective shares and they might have delivered the possession to the first defendant and that the first defendant may be in possession of the property. In cross examination, he further admits that to his knowledge his other 2 brothers I.J.Dube and I.G.Dube executed sale deeds in favour of first defendant in their respective shares and they might have delivered the possession to the first defendant and that the first defendant may be in possession of the property. As stated supra, the presence of PW4 at the time of alleged Ex.A8 disputed will is a doubtful because he is one of the beneficiary under Ex.A8 will. Furthermore there is no whisper in the plaint pleadings that at the time of Ex.A8 un-registered will, the beneficiaries under the said will were also present. As stated supra, admittedly the original alleged Ex.A8 will is not at all filed by the plaintiff along with the plaint and it was filed during the course of trial after filing written statement by the first defendant. This suit is instituted in the year 1995, prior to the institution of this suit, in the year 1986 the first defendant obtained registered sale deeds from the brothers of the vendors of the plaintiff under Ex.B8 and Ex.B16. Furthermore, in Ex.B1 release deed obtained by the vendors of the plaintiff, there was a clear recital that the Biswanatha Prasad, testator of the will died intestate and the total property of Ac.12.59 cents is an ancestral property and the same was purchased from out of ancestral nucleus. Furthermore, Ex.B22 registered sale deed executed by the vendors of the plaintiff for the other property goes to show that their father Biswanatha Prasad died intestate, there was a specific recital in Ex.B22 sale deed executed by the vendors of the plaintiff for other property that their father Biswanatha Prasad died intestate. Therefore, in view of the above reasons, there are several suspicious circumstances surrounded the alleged execution of Ex.A8 will. 24. It is well settled that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, (2008)15 SCC 365 . The legal position in this regard is no more res integra and the same has been well settled by the Apex Court in a case of Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, (2008)15 SCC 365 . In the aforesaid case the Apex Court held'it is trite law that execution of will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances when such evidences are brought on record, the Court may take aid of the presumptive evidences also'. 25. It is a well settled principle that in every case the burden lies on the propounder of the will and it is the duty of the propounder of the will, he has to satisfy the conscious of the Court that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously that the testator at the time when he subscribed his signature on a will in a sound and disposing state of mind and memory and ordinarily however, the onus is discharged as regards the due execution of the will, if the propounder leads evidence to show that the will bears the signature and mark of the testator and the will is duly attested. This attestation however shall have to be in accordance with Section 68 of Indian Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until atleast one attesting witness has been called for the purpose of proving its execution and the same is so however in the event of there being an attesting witness alive and capable of giving evidence. The law is also equally settled that in the event of there, being circumstances surrounding the execution of will, surrounded in suspicion, it is the paramountduty on the part of the propounder to remove the suspicion by leading satisfactory evidence. As stated supra, in the case on hand, no satisfactory evidence is produced by the plaintiff to prove the title of her vendors. 26. PW3 is the son of the one of the attestor. As stated supra, in the case on hand, no satisfactory evidence is produced by the plaintiff to prove the title of her vendors. 26. PW3 is the son of the one of the attestor. He admits in his evidence in cross examination that he studied S.S.L.C. and he has not produced any document which contains the signature of his father and his father's signatures are available in railway department as he was a railway employee and as per his evidence in chief examination, he know Biswanatha Prasad, who was his neighbour at Chennai and he died about more than 20 years back and he used to go to his house during his life time and his father was late C.S.D.Mani, retired railway employee and he died in the year 1984. It is not the case of the plaintiff that PW3 was present at the time of execution of alleged Ex.A8 will. As stated supra, there are several suspicious circumstances surrounding the execution of Ex.A8 will. In the documents of the vendors of the plaintiff in respect of other sale deeds executed by vendors of the plaintiff in respect of other properties, there was a clear recital that their father died intestate. Furthermore, Ex.B1 registered release deed obtained by the vendors of the plaintiff from one of their brothers goes to show that their father Biswanatha Prasad died intestate, therefore, the evidence of PW3 did not inspire confidence. As stated supra, PW4 is one of the beneficiary under the will. There is no evidence on record that in his presence only, the Ex.A8 will is typed. To prove the presence of PW4 at the time of alleged will, his signature is not there in the alleged Ex.A8 will. There is no pleading in the plaint that PW4 is also present at the time of alleged Ex.A8 will. 27. It has been brought to the notice of this Court by the leaned counsel for plaintiff that the plaintiff filed a petition to compare the signatures of Biswanatha Prasad, but the said petition was dismissed by the trial Court. Admittedly, the plaintiff has not challenged the said order passed by the trial Court.The trial Court gave a finding in its judgment that the signature found on Ex.A8 is similar to Ex.A93, Ex.A95 to Ex.A99 and it appears to be similar. Admittedly, the plaintiff has not challenged the said order passed by the trial Court.The trial Court gave a finding in its judgment that the signature found on Ex.A8 is similar to Ex.A93, Ex.A95 to Ex.A99 and it appears to be similar. No doubt, the Court has got power to compare the disputed signatures, but the said discretionary power cannot be exercised in a document of will. The Court cannot step into the shoes of expert, because Ex.A8 is suspicious document, because there are several suspicious circumstances as stated above surrounding the Ex.A8 will. As stated supra, it is the duty of the propounder of the will that he has to take all the steps to prove the alleged unregistered will because it is the last testament of testator. The case of the first defendant is that he purchased the plaint schedule property under a registered sale deed from the brothers of the vendors of the plaintiff in the year 1986 much prior to the institution of the suit proceedings and the suit is instituted in the year 1995. The aforesaid circumstances creates cloud in surrounding the execution of Ex.A8 will. The evidence on record does not inspire confidence and more so it creates a suspicion with regard to execution and genuineness of the Ex.A8 will. Accordingly, the point No.1 is answered in holding that Ex.A8 will is not proved in accordance with law. 28. Point No.2: Whether the plaintiff is having right and title in the plaint schedule property? As per the case of the plaintiff, her father purchased Ac.12.59 cents from Biswanatha Prasad under an agreement of sale dated 31.05.1976. Admittedly the agreement of sale does not confer any title in favour of any party, the alleged agreement of sale is not came into light, the said agreement of sale is not yet filed by the plaintiff. As per the case of the plaintiff, she obtained a registered sale deed under original of Ex.A13 for the plaint schedule property from I.T.Dube, I.N.Dube and Bhuvaneswari, who are the children of Biswanatha Prasad. As stated supra, the plaintiff herein is claiming right and title in the plaint schedule property. The legal position in this regard is no more res integra and the same has been well settled in a catena of judgments. As stated supra, the plaintiff herein is claiming right and title in the plaint schedule property. The legal position in this regard is no more res integra and the same has been well settled in a catena of judgments. In a suit for declaration of title, the burden is heavily lies upon the plaintiff to prove her right and title by way of producing oral and documentary evidence and the plaintiff is not supposed to depend upon the weaknesses in the case of the defendants. 29. As per the case of the plaintiff, she got title under a original registered sale deed said to have been executed by children of Biswanatha Prasad i.e., I.N. Dube, I.T.Dube and Bhuvaneswari and they got right and title by virtue of the will said to have been executed by their father Biswanatha Prasad. As stated supra, Ex.A8 will is not at all proved in accordance with law and there are several suspicious circumstances surrounding the execution of Ex.A8 will and there was a heavy cloud surrounding the will and the same is not at all removed by the propounder of the will. The first defendant pleaded in the written statement itself that Biswanatha Prasad died intestate on 16.10.1978 leaving behind his four sons and one daughter and after the demise of the said Biswanatha Prasad, all the sons and daughter have been enjoying the said property of Ac.12.59 cents with absolute rights. The first defendant specifically pleaded that one of the son of Biswanatha Prasad by name Gouthamnath executed a registered General Power of Attorney on 25.07.1986 in favor of D.Venkatachalam, S/o.D.Venkatarayulu and authorized him to dispose of his property i.e., part of the suit schedule property. He further pleaded that the said Venkatachalam as a registered General Power of Attorney agent of Gowthamnath executed a registered sale deed dated 02.08.1986 in favour of the first defendant by alienating his 1/5th share in total Ac.12.59 cents of the property belong to Biswanatha Prasad. In order to prove the same the first defendant relied on Ex.B8 registration extract of the registered sale deed dated 02.08.1986. In order to prove the same the first defendant relied on Ex.B8 registration extract of the registered sale deed dated 02.08.1986. Another plea putforth by the first defendant is that on 04.08.1986, the another son of Biswanatha Prasad by name I.J.Dube executed a registered General Power of Attorney in favour of said Venkatachalam authorizing him to dispose of his share of property in the suit schedule property and the said Venkatachalam as a registered General Power of Attorney holder executed a registered sale deed dated 09.08.1986 in favour of the first defendant for an extent of Ac.2.53 cents being his 1/5th share from out of Ac.12.59 cents for a valid sale consideration. In order to prove the same, first defendant relied on Ex.B16 registered sale deed dated 09.08.1986. The first defendant pleaded that by virtue of Ex.B8 and Ex.B16 registered sale deeds of the first defendant, he has got absolute right and title in the total plaint schedule property. The registered sale deeds of the first defendant are relates to the year 1986 much prior to the institution of the suit itself. The suit instituted in the year 1995 by the plaintiff. There is evidence on record that the first defendant mortgaged the suit schedule property to Co-operative Society and obtained a loan and the said loan is still subsisting by the date of suit itself. Furthermore, prior to the institution of the suit itself by the plaintiff, there are several alienations by the first defendant in favour of the subsequent purchasers, the subsequent purchasers are none other than the other defendants in the suit proceedings. 30. The case of the plaintiff is that she got absolute right and title under Ex.A13 registered sale deed. The first defendant is disputing that the vendors of the plaintiff are not having any right in Ex.A13 property. The specific case of the plaintiff is that her vendors got right under Ex.A8 will said to have been executed by their father Biswanatha Prasad. Admittedly the source of title by virtue of alleged Ex.A8 will is not at all mentioned in Ex.A13 will by the vendors of the plaintiff. The specific case of the plaintiff is that her vendors got right under Ex.A8 will said to have been executed by their father Biswanatha Prasad. Admittedly the source of title by virtue of alleged Ex.A8 will is not at all mentioned in Ex.A13 will by the vendors of the plaintiff. The recitals in Ex.A13 are I.T.Dube, I.N.Dube, the sons of Biswanatha Prasad and Kumari Bhuvaneswari, daughter of Biswanatha Prasad as vendors executed the said sale deed in favour of Avula Indira, in the said sale deed there is a recital that total consideration of sum of Rs.47,000/- was paid by C.Lakshmipathi on behalf of his wife Munemma and his daughter Avula Indira on behalf of purchasers to the vendors and to their father late Biswanatha Prasad under an agreement of sale dated 31.05.1976 in respect of total extent of Ac.12.59 cents dry land including the suit schedule property and delivered the possession of the same to lakshmipathi. It was further recited that the vendors received proportionate sale consideration of Rs.19,000/- for the schedule mentioned property, now at the instance of C.Lakshmipathi, C.Munemma and the purchasers, the vendors herein are executed the Ex.A13 registered sale deed dated 02.05.1986 in favour of the plaintiff. As per the case of the vendors in the alleged sale deed of the plaintiff their father Biswanatha Prasad is having total rights in Ac.12.59 cents of dry land. The contention of the plaintiff is that the Biswanath Prasad executed an unregistered will dated 14.01.1978 under Ex.A8 in favour of vendors of the plaintiff. As stated supra, Ex.A8 is not at all referred in Ex.A13 and the Ex.A8 is not at all proved by the plaintiff in accordance with law. 31. The defence taken by the first defendant is that the vendors of Ex.A13 are having only 1/5th share each in the total extent of Ac.12.59 cents. It is the specific case of the first defendant that the other 2 brothers of vendors of the plaintiff executed a registered sale deeds in the year 1986 in respect of their 1/5th share each in favour of first defendant much prior to the institution of the suit and the possession was also delivered to him and the first defendant also alienated most of the property to third parties prior to the institution of the suit itself. The specific case of the first defendant is that one Lakshmibai who is none other than the sister of the father of the vendors of the plaintiff owned several properties besides the plaint schedule property, who got the same from Swamy Hathiramji mutt, Tirupathi and she had no issues and one Hanuman Prasad was her brother. After the death of said Lakshmi bai, her brother Hanuman Prasad was in a possession and enjoyment of the said property with absolute rights. It was specifically pleaded by the first defendant that the said Hanuman Prasad is none other than the father of Biswanath Prasad and after the death of Hanuman prasad, Biswanath Prasad succeeded the total property of Hanuman Prasad and that the plaint schedule property is the ancestral property and not self-acquired property of the Biswanath Prasad as contended by the plaintiff. Furthermore, Ex.B1 registered release deed said to have been obtained by the vendors of the plaintiff clearly goes toshow that their father died intestate and the total Ac.12.59 cents is the ancestral property of their father by name Biswanatha Prasad. The documents filed by the first defendant go to show that the father of Biswanatha Prasad by name Hanuman Prasad and Biswanath Prasad jointly purchased some property. As stated supra, Ex.A8 will is not proved in accordance with law, therefore, the vendors of the plaintiff are having 1/5th share each only in the total extent of Ac.12.59 cents of land. Ex.B22 sale deed said to have been executed by the vendors of the plaintiff for other property under Ex.B22, there was a clear recital in Ex.B22 that their father Biswanatha Prasad died intestate. Furthermore, PW4 one of the vendors of the plaintiff stated in his evidence in cross examination itself that on the date of Ex.A13 no consideration was received by him, his brother and his sister Bhuvaneswari under Ex.A13 registered sale deed. 32. The learned counsel for the plaintiff placed a reliance of High Court of A.P. in the case of Mahendra C Mehta vs. Kousalya Cooperative Housing Society Limited, Hyderabad, 2001 LawSuit(AP) 541. The saidsuit was filed for declaration of title and recovery of possession but the present suit is filed for declaration of title and consequential relief of permanent injunction restraining the defendants and their men from ever interfering into the plaint schedule property. The saidsuit was filed for declaration of title and recovery of possession but the present suit is filed for declaration of title and consequential relief of permanent injunction restraining the defendants and their men from ever interfering into the plaint schedule property. In the case on hand, the claim of the plaintiff is that her title is by virtue of registered sale deed under Ex.A13. It is not the case of the first defendant in the case on hand that his title is by way of adverse possession. Therefore, the facts and circumstances in the cited decision are different to the instant case. 33. The learned counsel for the plaintiff placed another reliance of High Court of Kerala in the case of Thiruvanchan Sankaran vs. Kunjipillai Amma Gouri Amma, 1970 LawSuit (Ker) 3, the facts in the said case relates to the recovery of possession of the plaint schedule property but not a suit for declaration of title. In the case on hand, the plaintiff herein is claiming main relief of declaration of title. As stated supra, the entire burden is on the plaintiff to prove her title by producing oral and documentary evidence on record, but she is not supposed to depend upon the weaknesses in the case of the defendants. 34. The learned counsel for the plaintiff placed another reliance in the case of Jagabandhu Naik and another vs. Gouri Bandha and others, AIR 1985 Orissa 126. In that case it was held as follows: Where in a suit for declaration of title and confirmation of possession, the defendant took the plea of adverse possession and the Court after finding that the defendants had failed to prove that they were possessing the land adversely and had perfected their title by adverse possession, dismissed the suit after further finding that the plaintiffs had failed to prove their possession within 12 years from the filing of the suit, such order of Court is erroneous and liable to be set aside. Under the new Limitation Act, in a suit based on title even if dispossession also is alleged, the defendant can succeed only if he proves that his possession has become adverse to the plaintiff beyond 12 years of the suit. The plaintiff need prove only his title and he need not show that he was in possession within 12 years of the suit. The plaintiff need prove only his title and he need not show that he was in possession within 12 years of the suit. In the case on hand, it is not the case of the first defendant that his possession is by way of adverse possession, the case of the first defendant in the case on hand is that his possession is by way of registered sale deed said to have been executed by his vendors. The plaintiff in the suit is claiming relief of declaration of title by virtue of registered sale deed said to have been executed by her vendors under Ex.A13. The case of the first defendant is that the vendors of the plaintiff are having 1/5th share each in the plaint schedule property but they are not having exclusive rights in the plaint schedule property. 35. To prove the case of the plaintiff, the plaintiff relied on the evidence of PW1, who is none other than the husband of plaintiff. PW2 is the mother of the plaintiff. The plaintiff did not enter into the witness box. PW2 mother of the plaintiff stated in her evidence that through her husband she blessed with 6 children, the plaintiff is the second daughter to her and the plaint schedule property which is an extent of Ac.5.00 cents, the total extent of suit survey number is Ac.12.59 cents, the remaining Ac.7.59 cents belongs to her and the plaint schedule property belongs to the plaintiff and it is situated to the South of her Ac.7.59 cents. She further deposed that her husband entered into an agreement of sale for the entire Ac.12.59 cents of land from Madras people for Rs. 47,000/- and her husband paid entire sale consideration and possession was also delivered. The said agreement of sale did not come into light and the same is not at all filed by the plaintiff. In her cross examination, she admits that originally the suit schedule property belongs to her husband and he purchased the same under an agreement of sale and on that day an elderly person, whose name she does not know, came along with his 2 sons and 1 daughter belongs to Madras and she does not know how many children in total he had. She further admits that she does not know whether he had 4 sons and 1 daughter. She further admits that she does not know whether he had 4 sons and 1 daughter. PW2 pleaded ignorance that whether the said 3 children are entitled only 3 shares but not 5 shares. She further admits that the first defendant obtained sale deeds from the same property i.e., the plaint schedule property. She further admits in the year 1986 no cash was paid under the sale deed obtained by the plaintiff to the vendors. 36. PW4 is the one of the vendors of the plaintiff. As per his evidence after the marriages of his brothers I.G.Dube @ Gowthamnath and I.J.Dube, his father separated them from the joint family as they married inter-caste girls against his father wishes. As stated supra, no evidence is adduced by the plaintiff to show that the Gowthamnath and I.J.Dube were separated from the joint family of Biswanatha Prasad. It is not the case of the vendors of the plaintiff that the plaint schedule property is their absolute property. The case of the vendors of the plaintiff is that the plaint schedule property is originally belongs to their father and their father executed an unregistered will during the life time on 14.01.1978 under Ex.A8. As stated supra, the said alleged will is not at all proved by the propounder of the will as per the provisions of the Indian Evidence Act. In cross examination, he admits that the said Lakshmipathi never asked nor they revealed about his other 2 brothers and the release deed was executed by Gowthamnath in favour of himself, his brother I.T.Dube and sister Bhuvaneswari in respect of property situated at Vellore and Madras on 11.02.1997 under Ex.B1. Under Ex.B1 he relinquished 1/3rd share under the said document and Ex.B1 property was also included in Ex.A8. Further more a specific recital was made in Ex.B1 that the father of the vendors of the plaintiff died intestate and the total Ac.12.53 cents property is ancestral property and it was acquired by Biswanatha Prasad from out of ancestral nucleus. Another important admission made by the one of the vendors of the plaintiff i.e., PW4 is that to his knowledge I.G.Dube and I.J.Dube executed a sale deed in favour of first defendant for their respective shares and they might have delivered the possession to first defendant and the first defendant is in possession of the plaint schedule property. Another important admission made by the one of the vendors of the plaintiff i.e., PW4 is that to his knowledge I.G.Dube and I.J.Dube executed a sale deed in favour of first defendant for their respective shares and they might have delivered the possession to first defendant and the first defendant is in possession of the plaint schedule property. His evidence clearly goes to show that the plaint schedule property is in the possession of the first defendant subsequent to execution of registered sale deed in favour of the first defendant. 37. The plaintiff also relied on the evidence of PW6. As per the evidence of PW6 on 25.03.1992 the Co-operative Society, Mallamgunta sanctioned an amount of Rs.10,200/- to the first defendant and the loan disbursed was Rs.5,100/- and by 27.05.1997 the entire loan was discharged and the loan account was closed. His evidence clearly goes to show that subsequent to purchase of the plaint schedule property prior to institution of the suit itself in the year 1992, the first defendant obtained a loan from the Co-operative Society and the Co-operative Society also granted loan of Rs.10,200/- and by the date of the institution of the suit the said loan is pending and subsequent to institution of the suit, by 27.05.1997 the entire loan amount was discharged and loan account was closed. In his cross examination, he admits that they sanctioned the loan to the first defendant after going through the title of the first defendant. He further admits that the register shows that the documents were returned to the first defendant after discharging the loan as per the endorsement dated 09.06.1997. 38. The material on record reveals that the suit schedule property is Ac.5.00 cents and it is a part of the total extent of Ac.12.59 cents of the joint family property of Biswanatha Prasad and the 5 children of Biswanatha Prasad are entitled 1/5th share each in the total extent of Ac.12.50 cents. According to the plaintiff, she purchased the plaint schedule property of Ac.5.00 cents under a registered sale deed from the 3 children of Biswanatha Prasad and she did not obtain any sale deeds from the other 2 sons of Biswanatha Prasad. Admittedly the suit schedule property is not yet partitioned in between the family members of Biswanatha Prasad and children of Biswanatha Prasad. Admittedly the suit schedule property is not yet partitioned in between the family members of Biswanatha Prasad and children of Biswanatha Prasad. As stated supra, the alleged will said to have been executed by Biswanatha Prasad in favour of 2 sons and 1 daughter is not at all proved and the said Biswanatha Prasad died intestate. Therefore, the 3 children of Biswanatha Prasad are not having any authority to execute a registered sale deed for total Ac.5.00 cents in favour of the plaintiff at best they can alienate their respective shares of 1/5th each in the total plaint schedule property. The fact remains that the first defendant also purchased the plaint schedule property under registered sale deeds from the other 2 sons of Biswanatha Prasad, the same are filed and marked as exhibits and after purchase of the said property the first defendant mortgaged the suit schedule property to the Co-operative Bank a way back in the year 1992 and he also obtained a loan from the Cooperative Society and the same is not fully discharged by the date of institution of the suit and subsequent to institution of the suit in the year 1997 the first defendant discharged the loan and obtained return of original documents from the society and the first defendant also filed a bunch of cist receipts into the Court. The material on record reveals that the vendors of the plaintiff executed a sale deed under Ex.B22 for the other properties of Biswanatha Prasad, in the said sale deeds it was clearly mentioned that their father Biswanatha Prasad died intestate. The release deeds were also obtained by the vendors of the plaintiff in respect of 1/5th share of the other 2 sons of Biswanatha Prasad. Therefore, the material on record clearly reveals that the vendors of the plaintiff are not having any absolute rights in the plaint schedule property, at best they can alienate their respective 1/5th shares each to the plaintiff in the total Ac.5.00 cents of the plaint schedule property. Therefore, the material on record clearly reveals that the vendors of the plaintiff are not having any absolute rights in the plaint schedule property, at best they can alienate their respective 1/5th shares each to the plaintiff in the total Ac.5.00 cents of the plaint schedule property. The fact remains that for the total plaint schedule property the first defendant obtained a registered sale deeds from the other 2 brothers of the vendors of the plaintiff a way back in the year 1986 and he also obtained a loan from the Co-operative Society and also discharged the same subsequent to institution of the suit and obtained return of documents from the society. The material on record reveals that the third defendant purchased Ac.1.50 cents from the first defendant on 09.02.1987 under a registered sale deed and the third defendant and second defendant sold an extent of Ac.0.60 cents to the fourth defendant under a registered sale deed for valid sale consideration on 22.02.1989 and out of the balance land the third defendant sold several plots after laying layouts to the various third parties along with the second defendant a way back in the year 1989 itself i.e., prior to institution of the suit. Another important point is that the suit is instituted in the year 1995 itself. The plaintiff herein did not sought for the relief of cancellation of the said registered sale deeds. As stated supra, the suit is instituted for relief of declaration of title of total plaint schedule property. Therefore, the burden is on the plaintiff to prove that she is having right and title in the entire plaint schedule property and the burden is on the plaintiff to prove that her vendors are having absolute rights in the plaint schedule property. The defendant No.21 purchased plot No.9 after laying layout by the defendants 2 and 3 and he is in possession of the said property. For the foregoing reasons, the vendors of the plaintiff are not having total rights in the plaint schedule property, they are having right of 1/5th share each in the plaint schedule property. The material on record reveals that the schedule property belongs to Biswanatha Prasad, who died intestate and that all the children of Biswanath Prasad are having 1/5th share each in the total properties of Biswanatha Prasad. The material on record reveals that the schedule property belongs to Biswanatha Prasad, who died intestate and that all the children of Biswanath Prasad are having 1/5th share each in the total properties of Biswanatha Prasad. The plaintiff has not at all obtained the sale deeds from the other 2 sons of the Biswanatha Prasad for their respective 1/5th shares, therefore, the plaintiff is not entitled for the relief of declaration of title in respect of the plaint schedule property, accordingly the point No.2 is answered against the plaintiff. 39. Point No.3: Whether the plaintiff is entitled the relief of permanent injunction as prayed in the plaint? It was held on point No.2 that the vendors of the plaintiff are not having absolute rights in the plaint schedule property and at best they are having right of 1/5th share in the plaint schedule property by the date of Ex.A13. As stated supra, in the year 1989 itself the other 2 sons of Biswanatha Prasad i.e., Gowthamnath and I.J. Dube executed registered sale deeds in favour of the first defendant for their 1/5th share each in total Ac.12.59 cents of landed property. One of the vendors of the plaintiff i.e., PW4 admits in cross examination that the other 2 brothers of the vendors of the plaintiff executed sale deeds in favour of the first defendant for their respective 1/5th share in the total Ac.12.53 cents land i.e., the total property of their father and they might have delivered possession to the first defendant and the first defendant is in possession of the plaint schedule property subsequent to execution of the said sale deeds. The above admissions of the vendor of the plaintiff clearly goes to show that the sale deeds of the first defendant in respect of the plaint schedule property is acted upon for the year 1986 and the first defendant came into the possession of the plaint schedule property. 40. The plaintiff relied on the evidence of P.W.5. In his evidence in chief-examination, he stated that the suit land is cultivating by the plaintiff. In his evidence in cross-examination, he admits that P.W.1 and himself are friends since 15 years. Therefore, it is not safe to rely on the evidence of P.W.5. P.W.7 Deputy Mandal Revenue Officer admits in his cross-examination that for the schedule land patta is not transferred in the name of the plaintiff. 41. In his evidence in cross-examination, he admits that P.W.1 and himself are friends since 15 years. Therefore, it is not safe to rely on the evidence of P.W.5. P.W.7 Deputy Mandal Revenue Officer admits in his cross-examination that for the schedule land patta is not transferred in the name of the plaintiff. 41. The plaintiff relied on Ex.A25 to Ex.A29 i.e., cist receipts for some of the faslis for paying the land revenue. The material on record reveals that the plaintiff approached the Mandal Revenue Officer for mutation of names in the year 1986 itself and the evidence on record reveals that the name of the plaintiff is not mutated in revenue records in respect of plaint schedule property. The plaintiff relied on land revenue receipts for limited period for payment of land revenue for 1 or 2 years, those cannot be treated that the plaintiff is in possession of the plaint schedule property, however, the first defendant also relied on a bunch of land revenue receipts and also filed copy of 10(1) Account, copy for Fasali 1402 to show his possession. As stated supra, the plaintiff in the suit failed to prove that she is having right and title in the plaint schedule property, therefore, the plaintiff is not at all entitled the relief of permanent injunction as prayed for, accordingly the point No.3 is answered against the plaintiff. 42. Point No.4: Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent? In view of my findings on point No.1, the suit in O.S.No.278 of 1995 on the file of Additional Senior Civil Judge, Tirupati is liable to be dismissed and the appeal filed by the plaintiff vide A.S.No.453 of 2003 is dismissed. The appeal filed by the first defendant vide A.S.No.613 of 2003 is allowed. 43. In the result, A.S. No.453 of 2003 filed by the plaintiff is dismissed. (i) In the result, A.S.No. 613 of 2003 filed by the first defendant is allowed. Considering the circumstances of the cases, I order that each party do bear their own costs in the appeals. As a sequel, miscellaneous petitions, if any, pending in the Appeals shall stand closed.