JUDGMENT : B V L N Chakravarthi, J. This Second Appeal is preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure 1908 , assailing the decree and judgment, dated 16.08.2001, passed in A.S.No.1 of 2000 on the file of the Senior Civil Judge, at Hindupur. 2. Heard Sri K.S.Gopalakrishnan, learned counsel for the Appellant. None appeared for the respondents/defendants. Perused the material on record. PLEADINGS: 3. The appellant is the plaintiff in the suit. The respondents No.1 and 2 are the defendants in the suit. The parties in the Second Appeal shall hereinafter be referred to as arraigned in the Original Suit, for convenience and clarity. 4. The suit in O.S.106/1998 on the file of Junior Civil Judge at Hindupur, was instituted seeking the relief of declaration that the decree in R.C.2/1997 is not binding on the plaintiff and for permanent injunction restraining the defendants from executing the decree in R.C.2/1997. 5. The trial Court dismissed the suit vide judgment and decree dated 15.12.1999. The plaintiff preferred appeal in A.S.1/2000 on the file of Senior Civil Judge at Hindupur, challenging the judgment and decree of the trial Court. The Senior Civil Judge at Hindupur dismissed the appeal vide judgment dated 16.08.2001 confirming the judgment and decree of the trial Court. 6. 5. The trial Court dismissed the suit vide judgment and decree dated 15.12.1999. The plaintiff preferred appeal in A.S.1/2000 on the file of Senior Civil Judge at Hindupur, challenging the judgment and decree of the trial Court. The Senior Civil Judge at Hindupur dismissed the appeal vide judgment dated 16.08.2001 confirming the judgment and decree of the trial Court. 6. The case of the plaintiff is that the plaintiff is the owner of the suit schedule property and in possession of the same; house site patta was granted to the father-in-law of the plaintiff by the Government of Andhra Pradesh in Dis.No.17/88 dated 05.05.1979 in S.No.118-2, 119-1B, and 119-4; the original patta was mis-placed and it was not traced out; the 2 nd defendant is the husband of the plaintiff; he deserted the plaintiff about 10 years back; a house was constructed in the suit site by the father of the 2 nd defendant; it was assessed to property tax by Hindupur Municipality in the name of father of 2 nd defendant i.e., father-in-law of the plaintiff, Sri C.Venkata Ramudu; Sri Kesanna is father of Venkata Ramudu; initially they were Hindus; later, Kesanna adopted Christianity, changed his name as Devadas; Venkata Ramudu executed an unregistered will bequeathing the suit property in favour of the plaintiff on 20.03.1995; after death of Venkata Ramudu, property devolved upon the plaintiff; Venkata Ramudu did not execute any document in favour of the 1 st defendant; he is not a tenant in the plaint schedule property; Venkata Ramudu did not execute any lease deed in favour of the 1 st defendant; the 2 nd defendant and his brother Prakash colluded with the 1 st defendant and tried to dispossess the plaintiff from the suit schedule property; the 1 st defendant filed R.C.2/1997 against the 2 nd defendant; it was decreed exparte; E.P.3/1998 was filed for delivery of the property; the plaintiff filed E.A.23/998 objecting delivery; the plaintiff is not a party to the R.C. proceedings; hence, filed suit for declaration that the decree in R.C.2/1997 is not binding on the plaintiff and for permanent injunction. 7. 7. The case of the 1 st defendant is that he is the owner of the suit schedule property; he purchased the same under a sale agreement executed by Sri C.Venkata Ramudu on 02.03.1996; on the same day a rent agreement was executed by C.Venkata Ramudu, agreeing to pay monthly rent of Rs.1,000/- to the 1 st defendant; C.Venkata Ramudu along with his wife, son (2 nd defendant), daughter-in-law (plaintiff) and their children used to reside in the house; the family members also signed on the rent agreement as witnesses; C.Venkata Ramudu due to ill-health was admitted in hospital; he did not pay rent dues; the 1 st defendant issued legal notice date 23.11.1996; they received notice but they did not give any reply notice; C.Venkata Ramudu died in January, 1997; the 1 st defendant filed R.C.2/1997 against the 2 nd defendant for eviction; it was decreed on 13.09.1997; the 1 st defendant filed E.P.3/1998 on 26.12.1997 for delivery and possession of the schedule property; the 2 nd defendant received notice and remained exparte; later, he filed E.A.23/1998 to set aside the exparte order; it was allowed on condition, but condition was not complied; it was dismissed on 03.04.1998; on the next day, the plaintiff filed E.A.56/1998 U/o.21 rule 97 and 99 CPC to decide the title and possession of the plaintiff; later, E.A. was dismissed, as plaintiff did not attend; she filed another E.A.102/1998 to set aside the dismissal order in E.A.56/1998; she also filed E.A.103/1998 to stay proceedings in E.P.3/1998 and both the applications were dismissed on merits on 09.09.1998; the 1 st defendant filed original sale agreement, rent agreement, copy of notice, postal acknowledgement in R.C.2/1997 and E.P. proceedings; he also filed certified copy of delivery warrant and Amin report dated 21.07.1998; I.A.525/1998 filed by the plaintiff was dismissed on 09.09.1998 on merits; the plaintiff exhausted all the remedies, filed the present suit by colluding with her husband i.e., 2 nd defendant basing on the fabricated unregistered gift deed dated 20.03.1995; it is a created document to harass the 1 st defendant; the suit was filed to stop the execution proceedings in R.C.2/1997; the 1 st defendant is the owner of the suit schedule property; he is having title and right; the plaintiff and 2 nd defendant are tenants of the suit schedule property; they continued as tenants after death of C.Venkata Ramudu; the suit is barred by res- judicata; the contention of the plaintiff that the 2 nd defendant deserted her 10 years back is false; the plaintiff and the 2 nd defendant colluded and filed the present suit. ISSUES: 8. Basing on the above pleadings, the trial Court settled the following issues for trial: 1. Whether the plaintiff is entitled for declaration? and if so, she is entitled to permanent injunction as prayed for? 6. To what relief? EVIDENCE: 9. During trial, on behalf of the plaintiff, four witnesses were examined as P.Ws-1 to 4 and eight documents were marked as Exs.A-1 to A-8. On behalf of the defendants, two witnesses were examined as D.Ws-1 and 2 and one document was marked as Ex.B-1. 10. P.W-1 is the plaintiff. P.Ws-2 and 3 are the attestors of Ex.A-5 will. P.W-4 is the Deputy Manager of State Bank of India, Hindupur. The 1 st defendant was examined as D.W-1, and brother of 2 nd defendant was examined as D.W-2. Ex.A-1 patta stands in the name of C.Venkata Ramudu. Ex.A-2 is Property Register Extract. Ex.A-3 is pension payment order. Ex.A-4 is savings bank passbook stands in the name of C.Venkata Ramudu. Ex.A-5 will dated 20.03.1995. Exs.A-6 and A-7 are pay slips and Ex.A-8 is extract of ledger account. Ex.B-1 is certified copy of delivery warrant in E.P.3/1998 in R.C.2/1997. FINDING OF THE TRIAL COURT: 11. The trial Court on consideration of the above oral and documentary evidence, found that Ex.A-5 will dated 20.03.1995 relied on by the plaintiff is a fabricated document, and that the suit is a collusive suit, filed at the instance of the 2 nd defendant. Consequently dismissed the suit. FINDING OF THE FIRST APPELLATE COURT: 12. The Senior Civil Judge at Hindupur, on consideration of the evidence in the suit, held that the plaintiff failed to prove Ex.A-5 and that it was established that it is a fabricated document, and dismissed the appeal. 13. Challenging the above judgment of the First Appellate Court, the Second Appeal is preferred by plaintiff. The Second Appeal was admitted on 22.02.2002. SUBSTANTIAL QUESTION OF LAW: 14. During the course of arguments of the Second Appeal, the learned counsel for the appellant contended that the judgments of the trial Court and the 1 st Appellate Court are not sustainable in law in the absence of an issue on Ex.A-5 will. Therefore, the substantial question of law is: “Whether the judgments of the trial Court and the st 1 Appellate Court are not sustainable in law, in the absence of an issue on the validity of Ex.A-5 will”? 15 . Therefore, the substantial question of law is: “Whether the judgments of the trial Court and the st 1 Appellate Court are not sustainable in law, in the absence of an issue on the validity of Ex.A-5 will”? 15 . CONTENTIONS OF THE RESPECTIVE COUNSEL IN THE SECOND APPEAL: The learned counsel for the appellant/plaintiff would submit that the case of the plaintiff is that the property belongs to her father-in-law Sri C.Venkata Ramudu, who acquired the property under a patta issued by the Government in Dis.No.17/88 dated 05.05.1979 in S.No.118-2, 119-1B, and 119-4. He constructed a house in the suit site during his lifetime. He executed Ex.A-5 will dated 20.03.1995 bequeathing the property to the plaintiff. He died in the month of January, 1997. Therefore, the property devolved on the plaintiff and since then, the plaintiff she has been in possession and enjoyment of the suit property as owner of the property. The 1 st defendant fabricated some documents and filed R.C.2/1997 against the 2 nd defendant i.e., son of C.Venkata Ramudu for eviction without impleading the plaintiff, colluded with the 2 nd defendant, who deserted the plaintiff 10 years ago. R.C.2/1997 was decreed exparte. The 1 st defendant filed E.P.3/1998 for delivery of the property. The plaintiff filed objections for delivery. Hence, the suit to declare that the proceedings in R.C.2/1997 are not binding on the plaintiff and for permanent injunction to restrain the 1 st defendant to execute the decree in R.C.2/1997. He vehemently contended that both the Courts below found that Ex.A-5 will be a fabricated document and dismissed the suit and the 1 st appeal, though no issue was framed on the validity of the will. Hence, the judgments of both the Courts below are not sustainable in law, and liable to be set aside. ANALYSIS: 16. Reading of the written statement of the 1 st defendant would go to show that the 2 nd defendant i.e., husband of the plaintiff filed E.A.23/1998 in R.C.2/1997 to set aside the exparte decree and it was dismissed by the Court. Later, the plaintiff filed E.A.56/1998, E.A.102/1998, E.A.103/1998 in E.P.3/1998 in R.C.2/1997. All those applications filed by the plaintiff, including the applications filed U/o.21 rule 97 and 99 C.P.C. were dismissed by the trial Court on merits. 17. The plaintiff later filed the suit and again contend that her father- in-law Sri C.Venkata Ramudu executed Ex.A-5 will dated 20.03.1995. Later, the plaintiff filed E.A.56/1998, E.A.102/1998, E.A.103/1998 in E.P.3/1998 in R.C.2/1997. All those applications filed by the plaintiff, including the applications filed U/o.21 rule 97 and 99 C.P.C. were dismissed by the trial Court on merits. 17. The plaintiff later filed the suit and again contend that her father- in-law Sri C.Venkata Ramudu executed Ex.A-5 will dated 20.03.1995. Therefore, the plaintiff claimed right and title over the suit property basing on the said document. The 1 st defendant in the written statement specifically pleaded that the plaintiff colluded with her husband i.e., 2 nd defendant in the suit, and created the unregistered will dated 20.03.1995, to defeat the proceedings in R.C.2/1997. 18. The plaintiff and the 1 st defendant went to trial fully knowing the rival case. They led evidence not only in support of their contentions, but in refutation of those of the other side. The Courts below considered entire evidence placed in support of the plaintiff and the 1 st defendant. The evidence placed by both parties in refutation of the case of other side was also considered by the Courts below. They concurrently found that the plaintiff failed to prove Ex.A-5 will and on the other hand, they concurrently found that it was a fabricated document. Therefore, the trial Court and the 1 st Appellate Court dismissed the suit. 19. It is pertinent to note down that earlier also, in the applications filed by the plaintiff U/o.21 rule 97 and 99 CPC, same plea was raised, the Rent Controller dismissed the applications on merits. But, the plaintiff filed the present suit, again claiming right under Ex.A-5, which was already rejected by the Rent Controller. 20. The Hon’ble Apex Court in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, AIR 1963 SC 884 , considered the effect of no issue framed, when both parties went to trial fully knowing the rival case and led all evidence not only in support of their contentions, but also refuting the case of the other side. The Hon’ble Supreme Court in para-No.5, held as follows: “The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. The Hon’ble Supreme Court in para-No.5, held as follows: “The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but, since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We therefore, AIR 1963 SC 884 proceed to consider the central point in the case, to which we have amply referred already.” 21. In the case on hand, admittedly, the plaintiff and the 1 st defendant went to trial fully knowing the rival case. They led all the evidence in support of their contentions, also disputing the case of the other side. Both the Courts below, considered the entire evidence on record in support of the pleas raised by the plaintiff as well the 1 st defendant. They concurrently found that the plaintiff failed to prove Ex.A-5 will and therefore, dismissed the suit and the first appeal. 22. In the light of said factual matrix and law in the case, and in view of the judgment of the Hon’ble Apex Court, the plaintiff cannot contend that non framing of an issue on Ex.A-5 will vitiate the proceedings. Therefore, on that narrow ground, the proceedings of the suit and the first appeal will not vitiate, and further there is no need to remit the case. The evidence, led by both parties in the case is sufficient to reach a right conclusion on Ex.A-5 will. 23. Both the Courts below considered the evidence relating to Ex.A-5 will. P.Ws-2 and 3 are the attestors of Ex.A-5. They deposed that they attested the will. The evidence, led by both parties in the case is sufficient to reach a right conclusion on Ex.A-5 will. 23. Both the Courts below considered the evidence relating to Ex.A-5 will. P.Ws-2 and 3 are the attestors of Ex.A-5. They deposed that they attested the will. The contention of the 1 st defendant is that C.Venkata Ramudu is a literate person, and he used to sign on the documents. Whereas Ex.A-5 contains thumb impression. Therefore, it was a fabricated document. 24. P.W-4 is Deputy Manager in State Bank of India, Hindupur. According to his evidence, Sri C.Venkata Ramudu was making signatures on pay slips upto 04.08.1995 for withdrawing pension. Later, he was affixing thumb mark. Ex.A-5 is dated 20.03.1995. Therefore, the trial Court found that if really C.Venkata Ramudu suffered with paralysis in the year 1994, and could not subscribe signatures, he would affix thumb marks on the pay slips submitted to the bank from 1994 onwards. But pay slips upto 04.08.1995 contain the signatures of C.Venkata Ramudu. 25. P.W-2 deposed that he does not know how many years ago Ex.A-5 was executed. According to his testimony, Sri C.Venkata Ramudu himself scribed the document. Whereas P.W-3 did not depose who scribed the document. These circumstances create a suspicion how Ex.A-5 came into existence. In those circumstances, the trial Court found that the plaintiff failed to prove Ex.A-5 will. The 1 st Appellate Court also considered the same circumstances from the evidence placed by the plaintiff, and came to a conclusion that C.Venkata Ramudu was in a position to subscribe signatures as on the date of Ex.A-5 will, and therefore, it creates a doubt that Ex.A-5 will brought into existence for the reasons known to the plaintiff, and held that Ex.A-5 will is not a genuine document. 26. In those circumstances, coming out from the evidence, placed by the plaintiff and defendant regarding Ex.A-5 will, this Court did not find any grounds to interfere with the findings of the Courts below on Ex.A-5 will. Therefore, when the plaintiff failed to prove Ex.A-5 will, which is the basis for the suit for declaration, the suit shall be dismissed. In that view of the matter, there are no grounds to interfere with the judgment of the I Appellate Court. The Second Appeal is liable to be dismissed. CONCLUSION: 27. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. In that view of the matter, there are no grounds to interfere with the judgment of the I Appellate Court. The Second Appeal is liable to be dismissed. CONCLUSION: 27. In the light of foregoing discussion, the Second Appeal is liable to be dismissed. RESULT: 28. In the result, the Second Appeal is dismissed. There shall be no order as to costs. As a sequel, Interlacutory applications pending, if any, shall stand closed.