JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao, J)

This appeal is filed by the defendants in Original Suit No. 239 of 2003 on the file of the Court of the Principal Senior Civil Judge, Kurnool. The first respondent filed the suit against the appellants to declare her and her husband as the owners of the plaint schedule property and to direct the appellants to deliver possession of the same. The suit was decreed by the trial Court granting ten weeks time to the appellants to deliver vacant possession of the plaint schedule property to the first respondent.

2. For the sake of convenience the parties hereinafter will be referred to as plaintiff and defendants i.e., as they were originally arrayed in the plaint.

3. Briefly stated, the following are the averments of the plaint: One Draupathamma purchased the plaint schedule properties i.e., House and open space situated in Fort, Kurnool bearing H.Dr. No. Old 16/77, 16/81, New 16/97 and present door No. 67/97 in a Court auction held on 16.07.1962 in Original Suit No. 53 of 1959 in E.P. No. 65 of 1961 on the file of the Court of the Principal Senior Civil Judge, Kurnool and sale certificate was issued in her favour. She took possession of the property through Court on 30.03.1963. Mutation was also effected in her name as the owner of the property and she was in possession of the property by paying property tax. Draupathamma died on 01.04.1979 leaving behind her son Bheema Rao as her sole surviving legal heir. After the death of Draupathamma, Bheema Rao became entitled to the property, he and his wife who is the plaintiff herein were in management of the property.

4. The plaint schedule premises consists of several independent residential houses. The property was leased out to tenants and some of them are defendants herein. Bheema Rao was unheard of for more than seven years and since then the plaintiff has been looking after the management of the property. The plaintiff with a view to construct apartments in the place wherein the plaint schedule houses are situate required the tenants to vacate the land. Some of the tenants vacated and the defendants also promised to vacate the houses by 31.12.1997. They also gave letters to the plaintiff during the year 1997 requesting time for vacating the schedule mentioned premises. The plaintiff granted six months time to vacate the premises but the defendants who took advantage of the absence of Bheema Rao and oldage of the plaintiff did not vacate the premises and they fabricated a will dated 14.02.1963 purported to have been executed by Draupathamma in their favour. Basing on the said will they filed Original Suit No. 398 of 1998 in the Court of II Additional Junior Civil Judge, Kurnool for bare injunction against a fictitious person Mohan Krishna. The suit summons were said to be served on the said Mohan Krishna. He was said to have entered appearance on or about 29.05.1998 but his vakalat was not filed into the Court. On the other hand the vakalat of one C.V. Krishna Mohan was filed. Subsequently the fictitious defendant did not contest the suit and a collusive decree was obtained without filing the death certificate of Draupathamma and without examining any of the attestors of the alleged will. According to the plaintiff, the decree having been obtained by playing fraud on the Court is null and void and is not binding on her.

5. Before the Court below the defendant No. 8 remained ex parte. The first defendant filed her written statement and the same is adopted by the defendants 2 to 7 and 9.

6. In the written statement filed by the first defendant, it is contended as follows:

The plaintiff has to establish that late Draupathamma died on 01.04.1979 leaving behind her son Bheema Rao as the sole surviving legal heir. Draupathamma had no son by name Bheema Rao much less a daughter-in-law, the plaintiff herein. At no point of time the plaint schedule property was in possession and enjoyment of Bheema Rao or his wife Krishnavenamma, the plainti

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