Point of law: Being the first appellate court, it was, therefore, the duty of the High Court to decide the first appeal keeping in view the scope and powers conferred on it under Section 96 read with Order 41 Rule 31 of the Code mentioned above. It was unfortunately not done, thereby, causing prejudice to the appellants whose valuable right to prosecute the first appeal on facts and law was adversely affected which, in turn, deprived them of a hearing in the appeal in accordance with law.

JUDGMENT :

The plaintiff in O.S.No.205 of 1992 on the file of the Court of learned Principal Senior Civil Judge, Anakapalle is the appellant. The respondents are the defendants.

2. The 2nd respondent died and his legal representatives being respondents 6 to 8 are brought on record in the second appeal.

3. The appellant laid the suit for declaration of her right, title and interest to the plaint schedule property, which is a house at Kasimkota Village and to evict the respondents there from as well as recovery of rent or damages.

4. Sri Perumalla Padamatayya and Sri Simhachalam are brothers. Smt.Nallabilli Chinnammi is the younger sister of Smt.Kasamsetty Narayanamma. They are sisters of Sri Padamatayya and Sri Simhachalam.

5. A site was purchased by Smt.Nallabilli Chinnammi under a registered sale deed dated 06.12.1958. Her husband died at an young age. A house was constructed in this site consisting of about three rooms.

6. It is the contention of the appellant that Smt.Nallabilli Chinnammi was staying with her mother and that she was brought up by Smt.Nallabilli Chinnammi, who was looking after affairs of their family including the appellant and her husband. She further contended that during her life time, Smt.Nallabilli Chinnammi executed an unregistered will dated 09.06.1980 in a sound disposing state of mind bequeathing of her properties including the plaint schedule property in her favour.

7. It is also the contention of the appellant that she permitted Sri Simhachalam, elder brother of her husband to be a tenant in a portion of the plaint schedule house on a monthly rent of Rs.50/- and subject to paying the house tax. She further contended that she got constructed a wall in the middle room separating the portion in her occupation and that of Sri Simhachalam. She further contended that since she filed O.S.No.55 of 1999 on the file of the Court of learned Senior Civil Judge, Anakapalle, Sri Simhachalam bore grudge against her and he got issued a legal notice dated 10.03.1992, making several false allegations including a claim to the plaint schedule property. She further alleged that since Sri Simhachalam failed to pay rent from March, 1991, she got issued a reply to his legal notice on 14.03.1992.

8. Before institution of the suit, Sri Simhachalam died leaving behind the respondents, who are bound to pay rent to her as well as vacate the plaint schedule property, according to the contention of the appellant.

9. The respondents resisted this claim of the appellant denying the entire case set up by her including the alleged will dated 09.06.1980. They further contended that Sri Perumalla Simhachalam was the absolute owner of the plaint schedule property in Kaspa street, Kasimpet Village, which he got constructed along with his sister, Smt.Nallabilli Chinnammi. They further contended that they are in occupation of two rooms and that Smt.Nallabilli Chinnammi was in occupation of one room in this house and that Smt.Nallabilli Chinnammi had executed an unregistered Will dated 05.09.1978 in a sound disposing state of mind bequeathing her share in this house namely one room in favour of Sri Simhachalam. They further contended that an year later, Smt.Nallabilli Chinnammi died making Sri Simhachalam entitled for this room under this bequest.

10. The respondent also contended that Sri Simhachalam was paying property tax as owner with the absolute rights to the plaint schedule house and for more than 12 years. They further contended that during his life time Sri Simhachalam gave a room to the appellant for her residence, who, however, tried to grab the said property constructing a wall with the assistance of Executive Officer, Kasimkota Grampanchayat. However, this act was questioned by Sri Simhachalam, according to them, on which the officers of the Grampanchayat did not interfere. Denying that there was a relationship of landlord and tenant between appellant and Sri Simhachalam, questioning the maintainability of the suit and that it is bad