B. K. SOMASEKHARA, J.

( 1 ) THE judgment and decree of I Additional District Judge, Visakhapatnam in A. S. No. 20 of 1990 dated 14-7-1995 confirming the judgment and decree passed on 25-7-1989 by the Principal Subordinate Judge, Visakhapatnam in o. S. No. 35 of 1982 are in challenge in this Second Appeal.

( 2 ) THE appellant claims to be the plaintiff in the suit having been brought on record on the death of the original plaintiff Korada Appamma whereas the respondents are the defendants in the suit. The suit was filed for partition and separate possession of the alleged one-half or 1/12th share of the plaintiff in plaint a and b schedule properties. The suit for partition was resisted by the defendants. The following issues were tried by the trial Court. " (1) Whether Gangulu died in the year 1955 as pleaded by the plaintiff or after the year 1957, as pleaded by the defendants ? (2) Whether the plaint A and B schedule properties are correct ? (3) Whether the 1st defendant contracted the debts, a list of which is given in the written statement and whether they are binding on the plaintiff and the defendants ? (4) To what share is the plaintiff entitled ? (5) Whether the suit schedule properties have been overvalued ? (6) To what relief ?"after the trial, the learned Principal Subordinate Judge held that the plaintiff s husband died in the year 1957, that the schedule a and b properties were correctly stated, that the debts contracted by the first defendant after the death of her husband does not bind the plaintiff, the valuation of the suit property was correct, the first plaintiff did not execute the Will Ex. A-1 willingly and voluntarily and in sound disposing state of mind, that the Will dt. 13-6-1984 is not true and valid and not binding on the defendants and consequently dismissed the suit. The oral evidence in the trial comprises of the testimony of the present appellant as P. W. 1 and P. Ws. 2 to 4 and that of the first defendant as D. W. 1. The documentary evidence comprises of Ex. A-1, the will, for the plaintiff and Exs. B-1 to B-3 for the defendants. The matter was taken up in appeal by the present appellant before the learned District Judge, who confirmed the findings recorded by the learned Principal Subordinate Judge and dismissed the appeal.

( 3 ) THE main ground in the appeal raising the substantial question of law and canvassed on behalf of the appellant by the learned Counsel for the appellant is that instead of holding that there is no plea or averment in the plaint in regard to the Will between the principal plaintiff and the present appellant, impleaded him as Plaintiff No. 2, and without adverting to the evidence in the case in support of the Will, the learned District Judge has given a finding in the negative and against the appellant and that is sufficient to vitiate the judgment. The learned advocate for the respondents submits that there is no reason to interfere with the judgment and decree of the Courts below as they are findings of facts and no question of (law) substantial in nature arises to be considered in this second appeal.

( 4 ) IT is a surprise that the Courts below have dealt with the matter in a manner not known in law. The principal plaintiff, Korada Appamma claimed a share in the suit schedule properties. Due to certain reasons the present appellant was impleaded as the second plaintiff by allowing the application in I. A. No. 91 of 1985 based upon Will Ex. A-1. The learned District Judge has come to the conclusion that the appellant could not maintain the appeal as there was no averment in the plaint in regard to the Will and the proof of the same except his coming on record as the legal representative of the plaintiff. However, the learned Sub-Judge has gone into the proof or otherwise of the will Ex. A-1 against the present appellant. Therefore, there is a basic divergence of the legal method adopted by the learned District Judge while dealing with the matter. In the first pla

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