JUDGMENT :

M. SEETHARAMA MURTI, J.

1. This second appeal, under Section 100 of the Code of Civil Procedure, 1908, by the unsuccessful 2nd defendant, is directed against the decree and judgment, dated 1.3.2019, of the learned XI Additional District Judge, Tenali, passed in AS No. 54 of 2015 whereby the said learned Additional District Judge confirmed the decree & judgment, dated 17.7.2015, of the learned Principal Senior Civil Judge, Tenali, passed in OS No. 349 of 2011 filed by the sole plaintiff-1st respondent herein.

2. I have heard the submissions of Sri Nuthalapati Krishna Murthy, learned Counsel appearing for the appellant-2nd defendant ['2nd defendant', for brevity], and of Sri N. Sri Ram Murthy, learned Counsel appearing for the 1st respondent-plaintiff ['plaintiff, for brevity]. The 2nd respondent-2nd defendant died. I have perused the material record.

3. In this second appeal coming up for admission, the parties shall hereinafter be referred to as arraigned in the suit for convenience and clarity.

4. Since this second appeal deserves admission only when the 2nd defendant establishes that substantial questions of law are involved, the submissions of the learned Counsel for the 2nd defendant and of the learned Counsel for the plaintiff are heard on the limited aspect as to whether the questions raised in the grounds as substantial questions of law or any other substantial questions of law are involved and if so, whether the second appeal deserves admission.

5. In the grounds, the following questions are raised as substantial questions of law:

(a) Whether the Courts below had not failed to see the Ex. A1 the so called gift deed was only a Will but not a gift deed in view of the recitals therein.

(b) Non-joinder of necessary parties whether the Courts below had not failed to see that the whole trial of the case was vitiated by non-impleading of legal heirs of 1st defendant after her death during the trial of the suit.

(c) And whether the Courts below had not given perverse finding in accepting the Ex. A1 even though the attester and the scribe were not examined and that only P.W. 2 the father of the plaintiff a highly interested witness only. [Reproduced verbatim]

6. Learned Counsel for the appellant-2nd defendant contended that Exhibit A1, the so-called gift settlement deed, is in fact a Will in view of the recitals therein and that only P.W. 2, the father of the plaintiff, who is one of the attestors and who is interested in the plaintiff, is only examined and that the other attestor and the scribe are not examined and that therefore, Exhibit A1 is not proved and that the suit is bad for non-joinder of necessary parties and that the whole trial is vitiated for not impleading the legal representatives of the deceased 1st defendant and that the findings of the Courts below are perverse and that therefore, the above substantial questions are involved.

7. Per contra, learned Counsel for the plaintiff contended that both the Courts below dealt with the issues/points involved, in detail, and recorded concurrent findings of fact on all issues/points after dealing with the pleadings and oral & documentary evidence in correct perspective and that no substantial questions of law are involved and that none of the questions raised are substantial questions of law and that for the first time, a contention that Exhibit A1 is a Will and not a gift settlement deed, is being raised in this second appeal, and that even the said question is also a pure question of fact and that the second defendant cannot be permitted to raise such a new contention for the first time before this Court and take the plaintiff by surprise and that the second appeal is liable for dismissal, at the stage of admission.

8. The pleadings and the core facts are as follows:

8A. The sole plaintiff filed the suit against defendants 1 and 2 for declaration that he is the absolute owner of the plaint schedule property, for consequential relief of recovery of possession of the same