JUDGMENT

1. This Appeal, under Sec. 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/plaintiffs challenging the Decree and Judgment, dtd. 20/3/2003, in O.S.No.190 of 1996 passed by the learned Principal Senior Civil Judge, Eluru [for short 'the trial Court']. The Respondents herein are the defendants in the said Suit.

2. The Plaintiffs filed the above said suit for declaration that the will dtd. 18/1/1991 executed by late Motaparthi Seshayya is true and valid and for partition of the schedule properties into two equal shares and to allot one such share to the plaintiffs and for mesne profits and for costs of the suit.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.190 of 1996, are as under:

i) The father of the first plaintiff by name Seshayya executed a will on 18/1/1991. Under the said will, he bequeathed the property an extent of Ac.0.95 cents to the second plaintiff and Ac.0.15 cents in R.S.No.64/1 and Ac.0.23 cents in Rs. No.64/3 and 400 square yards of site to the first plaintiff and Ac.0.28 cents out of Ac.0.43 cents in R.S.No.64/1 to the first defendant. The rest of the land out of Ac.2.98 cents was bequeathed to the defendants 2 and 3. He also bequeathed the property acquired from his wife Bullamma to the first plaintiff and the first defendant equally Ac.1.00 cents each.

ii) The first plaintiff further contend that his father executed a will on 8/6/1990 wherein he bequeathed properties to both the plaintiffs and the defendants. After the death of their father, the first defendant in possession of the entire Ac.2.98 cents of land and house portion and Ac.2.00 cents belongs to Bullemma. The first plaintiff demanded for partition, ultimately, the landed property belong to Bullemma was partitioned. The first defendant also delivered upstair portion as per the will dtd. 29/12/1980. The first defendant has staircase which leads to the upstair portion rooms. Taking advantage of the first plaintiff has no stair case of his own, the first defendant trespassed into the upstair rooms belongs to the plaintiffs removed valuable articles like TV, Cots, etc., and locked the portion restraining the plaintiffs to enter into their portion. The plaintiffs gave police report and demanded for partition of the properties by virtue of a will dtd. 8/6/1990 and send notice dtd. 15/4/1993 and 5/3/1995. Later the first defendant handed over the upstair portion, after the delivery of the portion while cleaning the room and almirahs, the first plaintiff found a will executed by his father on 18/1/1991, immediately he has shown the will and sought partition of the properties as per the said will, but the first defendant did not cooperate, as such the plaintiffs were constrained to file the suit.

5. The first defendant filed a written statement, which was adopted by other defendants, by denying the averments mentioned in the plaint and further contended as under: -

i) Ever since the date of partition of properties under partition deed dtd. 25/6/1970, the first plaintiff and the first defendant have been in possession and enjoyment in their respective shares of properties acquired through the partition. Even as per the schedule of the registered will dtd. 29/12/1980 executed by Bullemma, she bequeathed some portion of the site and the building to the first plaintiff and the first defendant but not entire 1200 square yards of site owned by her. During the life time of their parents, the first defendant and the first plaintiff and their parents lived therein, the building in separate portions has earmarked in the will dtd. 29/12/1980 executed by Bullemma. Thus, the mother of the first defendant Bullemma never bequeathed entire 1200 square yards of site and house property under the registered will dtd. 29/12/1980. Bullemma settled an extent of 833 square yards of site in favour of the second defendant as per the sett