NARASU V V L Vs. V SREERAMA MURTHY

JUDGEMENT

(1.) In this Revision Petition, the controversy is confined to production of a Will claimed to have been executed on 22-2-1963. On an earlier occasion, by an order passed on 5-8-1993 in C.R.P.No. 3515/91, the learned single Judge of this High Court held that the trial Court was justified in rejecting the Will dated 22-2-1963 after observing that the appellate Court directed the trial Court to submit a finding with regard to the Will dated 30-7-1979 regarding its genuineness.

(2.) In the impugned order in I.A.No. 15 of 1995 in A.S.No. 115 of 1985 dated 8-3-1995, the learned I Addl. District Judge, Krishna, at Machilipatnam, observed that die exclusive title and possession claimed by the original plaintiff could be properly appreciated in the light of the Will dated 22-2-1963, the mention of which found place in the written statement and evidence of the defendant and, therefore, in the interests of justice, its acceptance in evidence for the purpose of appreciation was necessary and allowed the Will dated 22-2-1963 to be produced in evidence, against which the present Revision Petition has been filed. The main grounds taken by the petitioner for challenging the legality of the appellate Court's order are as follows:- That the lower Court failed to see that the subject matter of LA. No.15/95 and 52/95 filed by the respondent under Order 41 Rule 27 and Section 151 of CPC to receive the Will dated 22-2-1963 as additional evidence was already covered by the order dated 5-8-1993 of the High Court in C.R.P. No. 3515 of 1991, which operated as res judicata precluding the subsequent application on the same question to be taken into consideration; and that the order passed by the appellate Court was in excess of the jurisdiction vested in him.

(3.) The appellate Court in its impugned order mainly took into consideration the fact that a mention with regard to the Will dated 22-2-1963 had already been made in the written statement. The lower appellate Court was also motivated by the fact that the reason for not filing the said Will during trial was to the effect that the same could not be traced. The lower appellate Court further took into consideration the fact that the controversy in the suit related to the exclusive rights claimed by the plaintiff for declaration of her title and restoration of possession. The said plaintiff died during the pendency of the appeal and the Will which was alleged to have been executed by the said plaintiff in favour of the respondent was pressed into service after adding the plaintiff's legal representatives and the matter was remanded to the lower Court for adjudication of the said Will and that during the said remission, the lower Court even though said to have received the said Will which was not sought for its admission, rejected it later and refused to take it into consideration under the impression that it was beyond the scope of enquiry for which the matter was remanded to it.