ORDER :

Plaintiff in the suit filed the above Civil Miscellaneous Appeal under Order XLIII Rule 1 (u) of CPC, against the judgment and decree dated 06.05.2022 in A.S.No.26 of 2013 on the file of I Additional District Judge, Eluru, whereby Appellate Court set aside the judgment and decree dated 29.11.2012 in O.S.No.330 of 2007 on the file of Principal Junior Civil Judge, Eluru and remanded the matter to the trial Court.

2. Parties to this judgment are referred to as per their status in the suit.

3. Plaintiff filed suit O.S.No.330 of 2007 seeking declaration of title in respect of item Nos.1 and 2 of plaint schedule property with vested remainder rights and consequently for recovery of possession of item Nos.1 and 2 of plaint schedule property.

4. The averments, in brief, in the plaint are that plaintiff is brother’s son of Sri Rayulu, who is husband of 1st defendant; that Rayulu and 1st defendant had no male issues and they brought up plaintiff from the age of 5 years and provided education and performed his marriage; that out of love and affection, Rayulu executed a registered Will dated 01.05.2004 bequeathing item Nos.1 and 2 of plaint schedule property and also residential house, wherein the plaintiff is residing along with 1st defendant; that Rayulu died on 26.12.2006; that though 1st defendant has no right, however, she executed a registered sale deed dated 12.01.2007 in respect of item Nos.1 and 2 of schedule property in favour of 2nd defendant; that registered sale deed dated 12.01.2007 is neither valid nor binding; that it was recited in the sale deed that possession was delivered; that 1st defendant is proclaiming that another document will be executed in respect of item No.2 of schedule property and hence, filed the suit for the reliefs stated supra.

5. 1st Defendant filed written statement and contended interalia that her husband had no right to execute Will for whole of the property; that they were blessed with two daughters Swarajya Lakshmi and Dhonepudi Ramadevi; that Swarajya Lakshmi died leaving behind her son Parvathaneni Bhaskara Lakshmi Swaroop, aged 5 years and the said Swaroop and Ramadevi are coparceners, since the property is ancestral; that Will executed by Rayulu does not bind 1st defendant; that 1st defendant, daughter and grandson have all right over the plaint schedule property and thus, prayed to dismiss the suit.

6. 2nd Defendant filed written statement and contended interalia that 1st defendant is Class-I legal heir of sri Rayulu along with daughters; that sale deed dated 12.01.2007 was executed by 1st defendant and the same is binding on the plaintiff; that 2nd defendant is in possession and enjoyment of property covered under sale deed dated 12.01.2007; that the revenue authorities issued pattadar pass book to 2nd defendant and she has been paying taxes and thus, prayed the Court to dismiss the suit.

7. Basing on the above pleadings, the trial Court framed the following issues:

(1) Whether the plaintiff is entitled for the relief of declaration that he is the absolute owner of item No.1 and 2 of plaint schedule property with vested remainder of rights?

(2) Whether the plaintiff is entitled for consequential possession of item No.1 and 2 of plaint schedule property as per the Will dated 01.05.2004?

(3) To what relief?

8. On behalf of the plaintiff, he himself as P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-7 were marked. On behalf of defendants, though 1st defendant filed affidavit in lieu of chief examination as D.W.1, her evidence was eschewed. D.Ws.2 and 3 were examined and no documents were marked.

9. Trial Court recorded the finding that Ex.A-1 registered Will dated 01.05.2004 is genuine executed by deceased Rayulu creating life interest in favour of 1st defendant and vested remainder to the plaintiff in respect of item Nos.1 and 2 and other residential building.

10. Regarding the contention raised by defendants that the schedule property is ancestral property and Rayulu had no absolute rights to ex